See ante, p. 395.
[316]
Wachter, Eheschiedungen, pp. 95 et seq.; Esmein, Marriage en Droit Canonique, vol. i, p. 6; Howard, History of Matrimonial Inst.i.tutions, vol. ii, p. 15. Howard (in agreement with Lecky) considers that the freedom of divorce was only abused by a small section of the Roman population, and that such abuse, so far as it existed, was not the cause of any decline of Roman morals.
[317]
The opinions of the Christian Fathers were very varied, and they were sometimes doubtful about them; see, e.g., the opinions collected by Cranmer and enumerated by Burnet, History of Reformation (ed. Nares), vol. ii, p. 91.
[318]
Constantine, the first Christian Emperor, enacted a strict and peculiar divorce law (allowing a wife to divorce her husband only when he was a homicide, a poisoner, or a violator of sepulchres), which could not be maintained. In 497, therefore, Anastasius decreed divorce by mutual consent. This was abolished by Justinian, who only allowed divorce for various specified causes, among them, however, including the husband"s adultery. These restrictions proved unworkable, and Justinian"s successor and nephew, Justin, restored divorce by mutual consent. Finally, in 870, Leo the Philosopher returned to Justinian"s enactment (see, e.g., Smith and Cheetham, Dictionary of Christian Antiquities, arts. "Adultery" and "Marriage").
[319]
The element of reverence in the early German att.i.tude towards women and the privileges which even the married woman enjoyed, so far as Tacitus can be considered a reliable guide, seem to have been the surviving vestiges of an earlier social state on a more matriarchal basis. They are most distinct at the dawn of German history. From the first, however, though divorce by mutual consent seems to have been possible, German custom was pitiless to the married woman who was unfaithful, sterile, or otherwise offended, though for some time after the introduction of Christianity it was no offence for the German husband to commit adultery (Westermarck, Origin of the Moral Ideas, vol. ii, p. 453).
[320]
"This form of marriage," says Hobhouse (op. cit., vol. i, p. 156), "is intimately a.s.sociated with the extension of marital power." Cf. Howard, op. cit., vol. i, p. 231. The very subordinate position of the mediaeval German woman is set forth by Hagelstange, Suddeutsches Bauernleben in Mittelalter, 1898, pp. 70 et seq.
[321]
Howard, op. cit., vol. i, p. 259; Smith and Cheetham, Dictionary of Christian Antiquities, art. Arrhae. It would appear, however, that the "bride-sale," of which Tacitus speaks, was not strictly the sale of a chattel nor of a slave-girl, but the sale of the mund or protectorship over the girl. It is true the distinction may not always have been clear to those who took part in the transaction. Similarly the Anglo-Saxon betrothal was not so much a payment of the bride"s price to her kinsmen, although as a matter of fact, they might make a profit out of the transaction, as a covenant stipulating for the bride"s honorable treatment as wife and widow. Reminiscences of this, remark Pollock and Maitland (op. cit., vol. ii, p. 364), may be found in "that curious cabinet of antiquities, the marriage ritual of the English Church."
[322]
Howard, op. cit., vol. i, pp. 278-281, 386. The Arrha crept into Roman and Byzantine law during the sixth century.
[323]
J. Wickham Legg, Ecclesiological Essays, p. 189. It may be added that the idea of the subordination of the wife to the husband appeared in the Christian Church at a somewhat early period, and no doubt independently of Germanic influences; St. Augustine said (Sermo x.x.xVII, cap. vi) that a good materfamilias must not be ashamed to call herself her husband"s servant (ancilla).
[324]
See, e.g., L. Gautier, La Chevalerie, Ch. IX.
[325]
Howard, op. cit., vol. i, pp. 293 et seq.; Esmein, op. cit., vol. i, pp. 25 et seq.; Smith and Cheetham, Dictionary of Christian Antiquities art. "Contract of Marriage."
[326]
Any later changes in Catholic Canon law have merely been in the direction of making matrimony still narrower and still more remote from the practice of the world. By a papal decree of 1907, civil marriages and marriages in non-Catholic places of worship are declared to be not only sinful and unlawful (which they were before), but actually null and void.
[327]
E. S. P. Haynes, Our Divorce Law, p. 3.
[328]
It was the Council of Trent, in the sixteenth century, which made ecclesiastical rites essential to binding marriage; but even then fifty-six prelates voted against that decision.
[329]
Esmein, op. cit., vol. i, p. 91.
[330]
It is sometimes said that the Catholic Church is able to diminish the evils of its doctrine of the indissolubility of marriage by the number of impediments to marriage it admits, thus affording free scope for dispensations from marriage. This scarcely seems to be the case. Dr. P. J. Hayes, who speaks with authority as Chancellor of the Catholic Archdiocese of New York, states ("Impediments to Marriage in the Catholic Church," North American Review, May, 1905) that even in so modern and so mixed a community as this there are few applications for dispensations on account of impediments; there are 15,000 Catholic marriages per annum in New York City, but scarcely five per annum are questioned as to validity, and these chiefly on the ground of bigamy.
[331]
The Canonists, say Pollock and Maitland (loc. cit.), "made a capricious mess of the marriage law." "Seldom," says Howard (op. cit., vol i, p. 340), "have mere theory and subtle quibbling had more disastrous consequences in practical life than in the case of the distinction between sponsalia de praesenti and de futuro."
[332]
Howard, op. cit., vol. i, pp. 386 et seq. On the whole, however, Luther"s opinion was that marriage, though a sacred and mysterious thing, is not a sacrament; his various statements on the matter are brought together by Strampff, Luther uber die Ehe, pp. 204-214.
[333]
Howard, op. cit., vol. ii, pp. 61 et seq.
[334]
Probably as a result of the somewhat confused and incoherent att.i.tude of the Reformers, the Canon law of marriage, in a modified form, really persisted in Protestant countries to a greater extent than in Catholic countries; in France, especially, it has been much more profoundly modified (Esmein, op. cit., vol. i, p. 33).
[335]
The Quaker conception of marriage is still vitally influential. "Why," says Mrs. Besant (Marriage, p. 19), "should not we take a leaf out of the Quaker"s book, and subst.i.tute for the present legal forms of marriage a simple declaration publicly made?"
[336]
Howard, op. cit., vol. ii, p. 456. The actual practice in Pennsylvania appears, however, to differ little from that usual in the other States.
[337]
Howard, op. cit., vol. ii, p. 109. "It is, indeed, wonderful," Howard remarks, "that a great nation, priding herself on a love of equity and social liberty, should thus for five generations tolerate an invidious indulgence, rather than frankly and courageously to free herself from the shackles of an ecclesiastical tradition."
[338]
"The enforced continuance of an unsuccessful union is perhaps the most immoral thing which a civilized society ever countenanced, far less encouraged," says G.o.dfrey (Science of s.e.x, p. 123). "The morality of a union is dependent upon mutual desire, and a union dictated by any other cause is outside the moral pale, however custom may sanction it, or religion and law condone it."
[339]
Adultery in most savage and barbarous societies is regarded, in the words of Westermarck, as "an illegitimate appropriation of the exclusive claims which the husband has acquired by the purchase of his wife, as an offence against property;" the seducer is, therefore, punished as a thief, by fine, mutilation, even death (Origin of the Moral Ideas, vol. ii, pp. 447 et seq.; id., History of Human Marriage, p. 121). Among some peoples it is the seducer who alone suffers, and not the wife.
[340]
It is sometimes said in defence of the claim for damages for seducing a wife that women are often weak and unable to resist masculine advances, so that the law ought to press heavily on the man who takes advantage of that weakness. This argument seems a little antiquated. The law is beginning to accept the responsibility even of married women in other respects, and can scarcely refuse to accept it for the control of her own person. Moreover, if it is so natural for the woman to yield, it is scarcely legitimate to punish the man with whom she has performed that natural act. It must further be said that if a wife"s adultery is only an irresponsible feminine weakness, a most undue brutality is inflicted on her by publicly demanding her pecuniary price from her lover. If, indeed, we accept this argument, we ought to reintroduce the mediaeval girdle of chast.i.ty.
[341]
Howard, op. cit., vol. ii, p. 114.
[342]
This rule is, in England, by no means a dead letter. Thus, in 1907, a wife who had left her home, leaving a letter stating that her husband was not the father of her child, subsequently brought an action for divorce, which, as the husband made no defence, she obtained. But, the King"s Proctor having learnt the facts, the decree was rescinded. Then the husband brought an action for divorce, but could not obtain it, having already admitted his own adultery by leaving the previous case undefended. He took the matter up to the Court of Appeal, but his pet.i.tion was dismissed, the Court being of opinion that "to grant relief in such a case was not in the interest of public morality." The safest way in England to render what is legally termed marriage absolutely indissoluble is for both parties to commit adultery.
[343]
Magnus Hirschfeld, Zeitschrift fur s.e.xualwissenschaft, Oct., 1908.
[344]
H. Adner, "Die Richterliche Beurteilung der "Zerrutteten" Ehe," Geschlecht und Gesellschaft, Bd. ii, Teil 8.
[345]
Gross-Hoffinger, Die Schichsale der Frauen und die Prost.i.tution, 1847; Bloch presents a full summary of the results of this inquiry in an Appendix to Ch. X of his s.e.xual Life of Our Times.
[346]
Divorce in the United States is fully discussed by Howard, op. cit., vol. iii.
[347]
H. Munsterberg, The Americans, p. 575. Similarly, Dr. Felix Adler, in a study of "The Ethics of Divorce" (The Ethical Record, 1890, p. 200), although not himself an admirer of divorce, believes that the first cause of the frequency of divorce in the United States is the high position of women.
[348]
In an important article, with ill.u.s.trative cases, on "The Neuro-psychical Element in Conjugal Aversion" (Journal of Nervous and Mental Diseases, Sept., 1892) Smith Baker refers to the cases in which "a man may find himself progressively becoming antipathetic, through recognition of the comparatively less developed personality of the one to whom he happens to be married. Marrying, perhaps, before he has learned to accurately judge of character and its tendencies, he awakens to the fact that he is honorably bound to live all his physiological life with, not a real companion, but a mere counterfeit." The cases are still more numerous, the same writer observes, in which the s.e.xual appet.i.te of the wife fails to reveal itself except as the result of education and practice. "This sort of natural-unnatural condition is the source of much disappointment, and of intense suffering on the part of the woman as well as of family dissatisfaction." Yet such causes for divorce are far too complex to be stated in statute-books, and far too intimate to be pleaded in courts of justice.