Woman Citizen Series. N9 1 . 
 
 Marriage 
 
 and 
 
 Divorce 
 
 by 
 
 Cecil Chapman 
 
 London 
 
 David Nutt , 57 - 59 long; Acre 
 
 1911 
 
THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 PRESENTED BY 
 
 PROF. CHARLES A. KOFOID AND 
 MRS. PRUDENCE W. KOFOID 
 
MARRIAGE AND DIVORCE 
 

MARRIAGE AND DIVORCE 
 
 SOME NEEDED REFORMS IN 
 CHURCH AND STATE 
 
 BY 
 
 CECIL CHAPMAN 
 
 METROPOLITAN MAGISTRATE 
 
 LONDON 
 
 DAVID NUTT, 57-59 LONG ACRE 
 1911 
 
PREFACE 
 
 MY object in writing this book is to submit 
 the institution of marriage to criticism based 
 upon daily experience, in order that such 
 evils connected with it, as are purely 
 artificial, may be fully considered by the 
 public at large with a view to their removal 
 or modification. I have endeavoured to 
 emphasise the fact that, however sacred its 
 character, marriage is a civil contract, and 
 to show that as such it cannot be maintained 
 at a high level of excellence without the 
 liberty to break it when its purpose has been 
 ignored or rendered impossible of fulfilment. 
 I hope also to have shown that divorce is 
 not an evil in itself, but an index of evils 
 
 PM7318 
 
vi PREFACE 
 
 which it is calculated to remove ; that 
 the increased tendency to seek divorce is not 
 primarily due to the growth of immorality, 
 but rather to a living aspiration after a higher 
 standard both of morality and happiness 
 in marriage. Increased facility for divorce 
 is a means of promoting regard for marriage 
 obligations, but it leaves the injured party 
 entirely free to accept or reject it, having 
 regard to the interests of the children and 
 general morality. Some readers may be 
 offended by the fault which I find with 
 ecclesiastical tradition, and many will remain 
 unaffected by my arguments, but I hope 
 that none will misunderstand my aim. 
 
 CECIL CHAPMAN. 
 
 24 BUCKINGHAM GATE, S.W. 
 January, 1911. 
 
CONTENTS 
 
 CHAPTER PAGE 
 
 PREFACE - --v 
 
 I. MARRIAGE ------._! 
 
 Appendix *.'-* *'"*' 5 
 II. DIVORCE 49 
 
 III. THE ARGUMENTS FOR AND AGAINST INDIS- 
 SOLUBILITY 
 
 (1) The Words of Scripture - - - - no 
 
 (2) The Children - 119 
 
 (3) The Increased Divorce Rate - - - 129 
 
 IV. CONCLUSIONS - 139 
 
MARRIAGE AND 
 DIVORCE 
 
 CHAPTER I 
 
 MARRIAGE 
 
 ' The physical passion which I feel is nothing in com- 
 parison with the worship I feel for the soul, the mind, 
 the heart, all in that woman which is not mere woman ; 
 the enchanting divinities in the train of love with whom 
 we pass our life, and who form the daily poem of a fugitive 
 delight/ BALZAC, Honorine. 
 
 THE appointment of a Royal Commission 
 to consider the whole question of Divorce 
 is an index of widespread feeling in the 
 nation that the laws regulating the institu- 
 tion of marriage are not properly adjusted to 
 the present instincts and conscience of the 
 people. The family is the unit of the State, 
 
2 MARRIAGE AND DIVORCE 
 
 and marriage is the institution or social 
 product intended to secure and preserve the 
 welfare and happiness of the family. If, 
 broadly speaking, there is found to be in 
 family life much unhappiness and much 
 that is harmful for the physical and moral 
 welfare of the future generation, it is necessary 
 to consider how far these evils are due to 
 preventable causes, and especially to what 
 extent they are due to the artificial and 
 legal regulations which have been framed 
 for its growth and continuance. 
 
 In order to arrive at a clear understanding 
 of the problem it is necessary to have some 
 acquaintance with the history of marriage. 
 In religion or politics or any other human 
 sphere we must know the past if we would use 
 the present or provide for the future. We 
 must know how men lived and thought, not 
 only how they professed to live and think. 
 There is no subject upon which people are 
 
MARRIAGE AND DIVORCE 3 
 
 inclined to speak with more conventionality 
 and less regard to actual facts and historical 
 truth than that of marriage. It is sufficient 
 for many good people to consider the subject 
 of marriage as the Jews were taught to 
 regard the ark of the Covenant. In their 
 opinion it is too sacred to be touched by 
 discussion ; but as has been well said, '.Those 
 in our day who talk so much about the 
 sacredness of marriage can know but little 
 of its history/ At any rate, it is a sub- 
 ject with which from all time men have 
 not only felt themselves competent to deal, 
 but have actually dealt with according to 
 their needs. 
 
 Ideally, marriage is a divine institution, 
 freely entered into by a man and woman as 
 a matter of mutual consent for life, depend- 
 ent for its continuance upon nothing but 
 will and affection. Historically, it is nothing 
 of the kind. It is the product of social 
 
4 MARRIAGE AND DIVORCE 
 
 evolution and has been the subject of change 
 and growth controlled by cosmic or universal 
 laws exactly in the same way as political 
 and all other human institutions have been. 
 It is not a discovery but a growth from 
 the necessities of human nature. It has in 
 consequence taken every variety of form, 
 from simple concubinage terminable at will 
 to polyandry the marriage of one woman 
 with many men, polygamy the marriage of 
 one man with many women, and monogamy 
 the marriage of one man with one woman. 
 "No collection of human beings has been 
 discovered without some attempt to regulate 
 and restrict the sexual intercourse of men 
 and women for the establishment and 
 maintenance of families, and the strict- 
 ness of these regulations has appeared 
 to increase with the growth of culture and 
 civilisation. It is an interesting and happy 
 discovery that there has been and still is a 
 
MARRIAGE AND DIVORCE 5 
 
 general tendency throughout the world to- 
 wards the monogamous form of marriage 
 as best suited for human happiness. The 
 author of the first chapter of Genesis has put 
 on record the ideal or divine form of marriage, 
 and man has from the beginning of history 
 been, blindly and half unconsciously but 
 slowly and surely, struggling to arrive at it. 
 In a work dealing with everyday problems 
 it would be out of place to dwell with any 
 detail upon the thousand different ways 
 in which the process of ages has revealed 
 itself, but we shall not realise how far we are, 
 as a nation, from the ideal set before us, nor 
 where we are to seek for the right way to 
 the goal, unless we understand clearly the 
 exact nature of our own Marriage Institution, 
 the road by which we have travelled to it, 
 and the extent to which it has proved itself 
 unsuited to a complete fulfilment of its 
 purpose. 
 
6 MARRIAGE AND DIVORCE 
 
 It is important at the outset to bear in 
 mind the distinction between the legal and 
 ecclesiastical view of marriage which neces- 
 sarily react the one upon the other. The 
 institution of marriage was, of course, estab- 
 lished in England, first by custom and then 
 by law, long before the Church had anything 
 to do with it, and our law has always con- 
 sidered and still considers marriage in no 
 other light than as a civil contract (Black- 
 stone, chap. xv). It was a human and 
 purely civil institution which grew up and 
 became gradually legalised by the com- 
 munity. It may have passed through 
 several different forms before reaching that 
 of monogamy ; according to Caesar there was 
 fraternal polyandry among the ancient 
 Britons ; and it must certainly have been 
 attuned to the several stages of communal 
 or national development, namely, the hunt- 
 ing, the nomadic, the pastoral, and the 
 
MARRIAGE AND DIVORCE 7 
 
 industrial. It began with marriage by 
 capture, and passing to marriage by purchase 
 arrived at a very imperfect form of marriage 
 by contract on terms of mutual consent. The 
 duration of marriage gradually increased 
 with the growth of culture, and it is proved 
 beyond doubt that a certain amount of 
 civilisation is an essential condition for the 
 formation of life-long unions. The only 
 marriage known to the law of England is 
 Christian marriage, which has been judicially 
 defined as ' the voluntary union for life of 
 one man and one woman to the exclusion 
 of all others' (Hyde v. Hyde, L. R. I P. & D. 
 130). Polygamous marriage is common 
 enough in practice and openly advocated 
 by all who maintain the dual standard of 
 morals, and traces of several of the ancient 
 forms are still discoverable in the daily cus- 
 toms of our people as well as in the service 
 of our Church. 
 
8 MARRIAGE AND DIVORCE 
 
 The ecclesiastical side of marriage origi- 
 nated in the endeavour to insure fidelity to 
 the contract by some impressive ceremonial. 
 This was the characteristic of all covenants, 
 and marriage from earliest times was re- 
 garded not only as a covenant between 
 the parties but also as an alliance between 
 their families and relations, and as such was 
 
 matter of high importance. The cere- 
 monies differed in every age and country, 
 but their object was always the same, namely, 
 to give solemnity and publicity to a bargain 
 which was intended to be lasting. This idea 
 hi publicity was also the excuse for wedding 
 feasts, which have been the practice of every 
 country, and in Babylon were carried to 
 so extravagant a length that sumptuary 
 laws were passed to control them. When 
 the custom was observed of purchasing a wife 
 for a stipulated price and a few presents made 
 to the bride herself, the event was marked by 
 
MARRIAGE AND DIVORCE 9 
 
 a feast to show that the wife was considered 
 a valuable acquisition, for she was not only 
 looked upon as a wife, but also as a servant 
 or slave. In Assyria it is said that all 
 marriageable girls were put up for sale by 
 auction every year, and according to their 
 attractions were sold with or without dowry. 
 It is further stated that in Assyria there was 
 a Court or Tribunal whose only business it 
 was to dispose of young women in marriage, 
 and see that the laws of their union were 
 properly executed (' History of Women/ by 
 William Alexander, M.D., 1779). The 
 Romans, from whom we derive most of our 
 ceremonial customs, had three forms of 
 marriage, known as confaneatio, coemptio, 
 and usus. The first was the most solemn 
 and religious in character. It involved the 
 wife's passing into the ' hand ' or power 
 of her husband, and was conducted by 
 the high priests. The second was a civil 
 
io MARRIAGE AND DIVORCE 
 
 ceremony representing a purchase, which 
 also involved the acquisition by the husband 
 of manus or power over his wife. The 
 third involved no such subjection of the 
 woman, but was dependent on nothing but 
 mutual consent for its continuance until 
 regulated by law. Speaking generally, the 
 institution of marriage in all nations was 
 attributed to the first law-givers, except 
 amongst the Jews who, living under a theo- 
 cracy, attributed it to God Himself. ) The 
 ceremony, however, amongst the Jews does 
 not appear to have been conducted by 
 their priests or prophets, but was left to be 
 dealt with by their magistrates and the 
 relations of the parties, and the strong 
 presumption is that it was not considered 
 in any other light than as a civil compact. 
 This is the view taken of it by Buddhists 
 and Mohammedans, though with them, as 
 with other nations, the blessing of God is 
 
MARRIAGE AND DIVORCE u 
 
 invoked upon the married pair by a lama 
 or priest. The idea of marriage being a 
 religious contract which could only be per- 
 formed by a priest is peculiar to the Christian 
 Church, and was not developed until several 
 centuries after the Christian era. The stages 
 by which marriage in Christian countries 
 gradually came under ecclesiastical juris- 
 diction are described by Professor Howard, 
 in his ' History of Matrimonial Institutions/ 
 as follows : 
 
 ' (i) It seems probable that during the 
 first three or four centuries Christian marriages 
 were not celebrated in church. The betrothal 
 or nuptial benediction was not essential to 
 a valid marriage, however important from a 
 religious point of view. After the nuptials, 
 the married pair attended the ordinary ser- 
 vice and partook of the Sacrament. 
 
 ' (2) The introduction of the bride mass 
 constitutes the second stage in the history 
 
12 MARRIAGE AND DIVORCE 
 
 of clerical marriage. Apparently the function 
 of the priest is purely religious. It is merely 
 an invocation of the Divine blessing upon the 
 life of the newly wedded pair, and has no 
 legal significance. 
 
 '(3) In the tenth century we reach the 
 beginning of a third stage in the use of the 
 ecclesiastical ceremony. The nuptials still 
 constitute two distinct acts. The first is the 
 " gifta " proper according to the usual tem- 
 poral form. It is no longer a strictly private 
 transaction, but it takes place before the 
 church door ante osteum ecclesiae in the 
 presence of the priest who participates in 
 the ceremony and closes it with his blessing. 
 The second act consists in the entrance into 
 the church and the celebration of the bride 
 mass, followed by a second benediction. 
 
 ' (4) The next step was accomplished in 
 the beginning of the thirteenth century. 
 Marriage was usually celebrated by the 
 
MARRIAGE AND DIVORCE 13 
 
 priest, and not merely in his presence ; 
 though the ceremony still takes place at the 
 church door. Not until the thirteenth 
 century, as a general rule, does the priest 
 appear with authority as one specially 
 qualified by his religious office to solemnise 
 the nuptials. 
 
 ' (5) The final stage in the process of 
 ecclesiastical domination, in which the Canon 
 Law supplanted and eliminated the secular 
 jurisdiction, was reached with the complete 
 development of the Sacramental dogma/ 
 
 This had become a recognised dogma of 
 the Church in the middle of the twelfth 
 century, and in 1164 was incorporated in the 
 list of the Seven Sacraments of the Church 
 in the sentences of Peter Lombard. It was 
 re-affirmed in 1439, and, finally, in 1563 it 
 was again re-affirmed by the Council of Trent, 
 and the whole subject placed under eccle- 
 siastical jurisdiction. From that date, in all 
 
14 MARRIAGE AND DIVORCE 
 
 Roman Catholic countries, no marriage was 
 valid which was not celebrated in accordance 
 with the rites of the Church, and consecrated 
 by one of her ministers, and so it remained for 
 all practical purposes in England until the year 
 1857, in spite of many efforts to the contrary. 
 The above statement is not strictly ac- 
 curate of the Roman Catholic Church, for 
 marriage by simple consent of the parties even 
 without witnesses has until quite recently been 
 always recognised by that Church as valid 
 although not associated with divine grace. 
 Within the last few years a Roman Catholic 
 so married was bound to get the marriage an- 
 nulled by ecclesiastical authority in order to 
 remarry, and the validity of such a marriage 
 was only decreed to be impossible by the pre- 
 sent Pope some two years ago. This marriage 
 by simple consent has always been recognised 
 in Scotland if the consent has been bond fide 
 expressed in the presence of witnesses. 
 
MARRIAGE AND DIVORCE 15 
 
 Resistance to the sacramental theory 
 of marriage accompanied the resistance to 
 ecclesiastical dominion which characterised 
 the Protestant Reformation. As Professor 
 James Lichtenberger says in his ' Divorce, a 
 Study in Social Causation ' : 
 
 ' Luther's conception of women and 
 marriage is determinative for Protestant 
 thought. He considered marriage pure and 
 the normal relation of the sexes. Natural 
 impulses, he held, were divinely implanted, 
 and the legitimate function a social duty. 
 He denies that marriage and the Church 
 have anything in common. " Marriage is to 
 be regarded as an act of free will by those 
 who participate in it. It does not concern 
 the Church. Therefore know that marriage 
 is an external thing as any other worldly 
 transaction. " 
 
 Selden said : ' Marriage is nothing but 
 a civil contract. 'Tis true 'tis an ordinance 
 
16 MARRIAGE AND DIVORCE 
 
 of God so is every contract. God com- 
 mands me to keep it when I have 
 made it/ 
 
 The sacramental idea gradually dis- 
 appeared in Protestant countries, but so 
 strong was the feeling in England that 
 marriage was a divine institution owing to 
 the matrimonial jurisdiction of the Church, 
 that sacerdotal nuptials remained as in- 
 dispensable as ever, and no definite progress 
 was made in the direction of civil marriage 
 until what has been called Cromwell's 
 triumph : ' The Civil Marriage Act of 1653,' 
 which is summarised by Professor Lichten- 
 berger as follows : 
 
 ' From this event may be dated the modern 
 era of civil contract marriage. By it 
 
 ' i. The sphere of matrimonial jurisdiction 
 was defined. 
 
 '2. Conditions of marriage and the form 
 of ceremony were established. 
 
MARRIAGE AND DIVORCE 17 
 
 ' 3. The machinery of administration was 
 determined. 
 
 ' Jurisdiction was vested in civil tribunals, 
 and a civil ceremony was required in all 
 cases of valid marriage. The ceremony estab- 
 lished the doctrine of mutual consent, and 
 was performed by a justice of the peace 
 after due publication of banns. The word- 
 ing of the ceremony, however, was of a 
 religious character. The whole subject of 
 administration as regards controversies, law- 
 fulness and unlawfulness was placed in the 
 hands of justices of the peace and local 
 judges. This Act, providing as it did for 
 jurisdiction, registration, publication, and 
 every civil function in reference to marriage, 
 has been the model for legislation in all civil- 
 ised countries for two centuries and a half.' 
 
 While this Civil Marriage Act was not 
 repealed, it was rendered inoperative almost 
 at once by the political changes that occurred, 
 
i8 MARRIAGE AND DIVORCE 
 
 and was not revived for exactly a century. 
 The Hardwicke Act of 1758 imperfectly re- 
 established civil marriages, and its defects 
 were remedied by the Act of 1833, which 
 with the Act of 1856 constitutes the present 
 civil marriage law of England. 
 
 ' In the United States from Colonial 
 days the civil contract idea of marriage 
 has prevailed. The nineteenth century has 
 witnessed the establishment of the civil 
 contract idea of marriage throughout practic- 
 ally the whole civilised world/ 
 
 The effect of this change of ideas or 
 doctrine of marriage will be dealt with in 
 a subsequent chapter upon divorce, but 
 the necessity for the change will be at once 
 appreciated when it is remembered that 
 for persons who belonged to any religious 
 body other than the Anglican Church there 
 could be no lawful marriage in England 
 without the Anglican ceremony, until in the 
 
MARRIAGE AND DIVORCE 19 
 
 reign of George IV (4 Geo. IV, c. 76, s. 31) 
 exemption was made for Quakers and Jews, 
 and in the reign of William IV (6 & 7 Will. IV, 
 c. 85) marriages were authorised in registered 
 buildings and before a registrar. 1 
 
 How far the Protestant idea is embodied 
 in the Anglican service, known as ' The 
 Solemnisation of Matrimony/ and how far 
 it insists upon the pre-Reformation sacra- 
 mental idea, is a matter of profound interest, 
 but is not strictly relevant to my inquiry. 
 What I desire to examine is the extent to 
 which it conforms to the divine ideal of 
 marriage referred to at the beginning of 
 this chapter, and in what respects it jars 
 with modern ideas of equity, and tends to 
 lower rather than raise the moral conception 
 
 1 The following figures show the gradual nature of the 
 change which has taken place : From 1851 to 1855 th e 
 proportion of marriages solemnised according to the rites 
 of the Established Church was 842 per thousand marriages, 
 whereas in 1908 it had fallen to 616 per thousand. 
 
 c 2 
 
20 MARRIAGE AND DIVORCE 
 
 of marriage, and perpetuate rather than 
 check or modify much that is regrettable 
 in the attitude of mind commonly adopted 
 by married persons. 
 
 It must be remembered that although 
 the Church made marriage a sacrament, and 
 thereby made it impossible for laymen to 
 celebrate it, the early teaching that marriage 
 was a necessary evil was never abandoned, 
 and still finds a place in the Church service. 
 St. Jerome said : ' Marriage is always a 
 vice : all we can do is to excuse and cleanse 
 it/ And again : ' The end of matrimony 
 is eternal death ; the earth is indeed filled 
 by it, but Heaven by virginity/ 
 
 Jovinian is reported to have been 
 banished in the fourth century by the 
 Emperor Honorius for maintaining that a 
 man who had cohabited with his wife might 
 be saved, provided he observed the laws of 
 piety and virtue laid down by the Gospel. 
 
MARRIAGE AND DIVORCE 21 
 
 As a logical outcome of this teaching 
 celibacy was eventually, after many centuries 
 of resistance, made compulsory for the 
 clergy. Resistance to the ordinance was 
 particularly strong in England, but was 
 finally overcome by a decree depriving the 
 wives and children of the clergy of any 
 benefit from the husband's estate. After 
 this they seem to have quietly sub- 
 mitted to the yoke until the Reforma- 
 tion restored to them again the rights of 
 mankind. 
 
 In the reign of Edward VI an Act was 
 passed by which the marriages of clergy 
 were declared lawful and their children 
 legitimate. Such a marriage had been 
 made a felony in the reign of Henry VIII. 
 In the reign of Queen Mary the Act of 
 Edward VI was repealed, and so things 
 remained until the first year of James I, 
 when an Act was passed restoring the rights 
 
22 MARRIAGE AND DIVORCE 
 
 of nature to the clergy, and that Act is still 
 in force. 
 
 The Anglican service gives countenance 
 to this depreciatory or ascetic view of matri- 
 mony in the following words : 
 
 ' Secondly it was ordained for a remedy 
 against Sin and to avoid fornication ; that 
 such persons as have not the gift of con- 
 tinency might marry and keep themselves 
 undefiled members of Christ's body.' 
 
 It seems little short of blasphemy to 
 speak of the natural impulses of human 
 nature as evil in themselves, and it is cer- 
 tainly degrading to the conception of matri- 
 mony to speak of it as a remedy for sin. 
 The early Christian ideal of celibacy and 
 virginity, which is hereby indicated, not 
 only reflects depreciatingly upon the uni- 
 versal ideas of innocent happiness, but, as 
 a maxim for general adoption, is inconsistent 
 with the continuance of any national life. 
 
MARRIAGE AND DIVORCE 23 
 
 The importance of the matter lies in its 
 detrimental effect upon moral ideas which 
 cannot be exaggerated. 
 
 Of even greater importance in its effect 
 upon national life is the Church's teaching 
 of sex inequality, which is quite incon- 
 sistent with the ideal of marriage based 
 upon mutual attraction and choice, and 
 safeguarded by reciprocal rights and 
 privileges. 
 
 This appears in the following passages 
 from the Church service : 
 
 (i.) The woman is asked whether she 
 will ' obey and serve ' her husband whereas 
 the man is only asked whether he will ' love 
 and comfort his wife/ 
 
 (ii.) The woman is ' given away ' by father 
 or friend to be married to the man, instead 
 of giving herself freely to him in return for 
 his giving himself freely to her. 
 
 (iii.) The man only says, ' With this ring 
 
24 MARRIAGE AND DIVORCE 
 
 I thee wed/ instead of, as in most other 
 countries, the man giving a ring to his wife 
 in exchange for a ring which she gives to 
 him. 
 
 (iv.) The prayer for a blessing upon the 
 newly married pair runs as follows : l O 
 God who by Thy mighty power hast made 
 all things of nothing ; who also (after other 
 things set in order) didst appoint that out 
 of man (created after Thine own image 
 and similitude) woman should take her be- 
 ginning, and knitting them together, didst 
 teach that it should never be lawful to 
 put asunder those whom Thou by matri- 
 mony hast made one look mercifully upon 
 these Thy servants that both this man 
 may love his wife according to Thy word, 
 and also that this woman may be loving 
 and amiable, faithful and obedient to her 
 husband.' 
 
 This view of woman's subservience to 
 
MARRIAGE AND DIVORCE 25 
 
 man is wholly inconsistent with the ideal 
 of marriage with which we started, and 
 wholly contrary to the teaching of the first 
 chapter of Genesis, where ' God said : " Let 
 us make man in our image, after our likeness, 
 and let them have dominion over the fish 
 of the sea," &c. So God created man in 
 his own image, in the image of God created 
 he him ; male and female created he 
 them. And God blessed them and said unto 
 them, "Be fruitful and multiply and have 
 dominion, " ' &c. 
 
 As if woman was not created in God's 
 image in the same way as man, and as if 
 the Jehovist second chapter of Genesis, 
 which presumably was written to justify 
 the then established subjection of women, 
 had the impress of divine truth and the 
 authority of history rather than the Elohist 
 first chapter. Whatever value may now be 
 given to it, the story of the second chapter 
 
26 MARRIAGE AND DIVORCE 
 
 does not appear to have had much credit 
 with the Jews, as it is never referred to in the 
 Prophets or Psalms, or Historical works, 
 nor indeed in the New Testament, until 
 St. Paul found in it a justification for his 
 teaching in almost exactly the same way as 
 the authors of the Church service have done. 
 It is essentially unspiritual and altogether 
 lower in standard than the first chapter, but 
 the mischief of it does not end there. It is 
 made the justification for a different standard 
 of obligation in regard to fidelity which is 
 repudiated by modern opinion. 
 
 Similar fault must be found with the 
 common interpretation of the phrase ' Whom 
 Thou by matrimony hast made one/ because 
 in the final discourse St. Paul's words to the 
 Ephesians are read : ' For we are members of 
 His body, of His flesh and of His bones. 
 For this cause shall a man leave his father and 
 mother and shall be joined unto his wife ; and 
 
MARRIAGE AND DIVORCE 27 
 
 they two shall be one flesh. This is a great 
 mystery, but I speak concerning Christ and 
 the Church/ And again : ' Wives, submit 
 yourselves unto your own husbands as unto 
 the Lord. For the husband is the head of 
 the wife even as Christ is the head of the 
 Church ; and He is the Saviour of the body '- 
 ' therefore, as the Church is subject unto 
 Christ, so let the wives be to their own 
 husbands in everything/ 
 
 Upon this passage Milton makes the 
 pertinent remark that ' if the husband must 
 be as Christ to the wife then must the 
 wife be as the Church to her husband. If 
 there be a perpetual contrariety of mind in 
 the Church towards Christ, Christ Himself 
 threatens to divorce such a spouse and has 
 often done it/ 
 
 The spiritual unity of two persons united 
 by mutual affection is a noble conception, 
 and an ideal never to be lost sight of, but a 
 
28 MARRIAGE AND DIVORCE 
 
 mysterious notion of physical unity which 
 involves the submission of the woman to 
 her husband in everything, and the actual 
 loss of her personality in his is an ignoble 
 conception, and one which has led by its 
 reaction upon the law to many absurd 
 conclusions and ever recurring injustice. It 
 is due to this very material interpretation of 
 oneness that wives for so many centuries 
 were deprived of education, and deemed 
 incapable of owning property, or being 
 guardians of their children, or of enjoying 
 any of the rights and privileges of a separate 
 personality. A married woman could not 
 make a contract, or bring an action on 
 her own account, or even be liable for 
 her own wrong-doing. Selden says : 
 'Tis reason a man that will have a wife 
 should be at the charge of her Trinkets 
 and pay all the scores she puts upon 
 him. He that will keep a monkey, 'tis 
 
MARRIAGE AND DIVORCE 29 
 
 fit he should pay for the glasses he breaks/ 
 She was liable to physical correction by her 
 husband, and for all practical purposes was 
 ignored by the law ; she lost her name and 
 her domicile, 1 and under the doctrine of 
 coverture was presumed in criminal law, 
 except in case of murder and high treason, to 
 have always acted under the influence of 
 her husband. Husbands and wives cannot 
 be guilty of conspiracy, because a man cannot 
 conspire with himself. Husbands and wives, 
 except in certain special cases, cannot give 
 evidence against each other. It is true that 
 since the Married Women's Property Act, 
 1884, great changes for the better have taken 
 place, and in America it is boasted that the 
 law has now reached that elevation of ethical 
 
 1 An Englishwoman married to a foreigner living in 
 this country who has not been naturalised is a foreigner, 
 although she has never left her own country, and as such 
 is not entitled as a widow to an old-age pension. 
 
30 MARRIAGE AND DIVORCE 
 
 sentiment which enables it to announce that 
 Justice knows no distinction of sex. That 
 is far from being the case in England, and it 
 is to a very large extent due to this false and 
 ignoble conception of unity. 
 
 The idea of a man leaving his father 
 and mother and clinging to his wife is 
 thought by some to have come from the 
 Bena form of marriage which was customary 
 among the Arabs, under which a man left 
 his own relations to live in his wife's tent. 
 The practice of a man living happily with 
 his wife's relations, whatever it may be in 
 other countries, is very rare in England, 
 and amongst the poor the 'mother-in-law' 
 is constantly referred to as 'the source of 
 all the trouble.' The truth is that, owing 
 to our barbarous customs and bad laws, the 
 wife's mother is a necessary and frequently 
 the only protection which a wife has got 
 from starvation and violence. This is not 
 
MARRIAGE AND DIVORCE 31 
 
 sufficiently realised by unthinking people, 
 who generally agree with Montaigne's saying, 
 that ' It is not everybody who is born 
 lucky like the man who, shooting at a hare, 
 killed his mother-in-law/ 
 
 I would make one further criticism of the 
 service, in that portion of it where the husband 
 is made to say ' With all my worldly goods 
 I thee endow/ The phrase is^ intended to 
 represent benevolent lordship in the husband, 
 but it has no reality whatever in practice. 
 In the vast majority of marriages there are 
 no worldly goods on either side, and in the 
 minority it often happens that the husband 
 has no worldly goods of his own, but is 
 receiving a large endowment from a rich 
 wife. The pecuniary dependence of wives 
 is a frequent cause of disaster in marriage, 
 but such an expression is worse than no 
 remedy it is a mockery. The vain repetition 
 of fine sentiments is said to be one of the 
 
32 MARRIAGE AND DIVORCE 
 
 devil's favourite methods of preventing right 
 action, and the Church is seriously injured 
 by association with it. 
 
 I spoke of pagan and worldly customs 
 being traceable in our marriage service, and 
 there is no doubt that ' the giving away of 
 a wife ' to her husband represents the old 
 marriage by purchase, and ' the ring ' probably 
 represents the gold given for her, although 
 it is by some supposed to represent the passing 
 through the ring as a sign of submission. 
 ' The best man ' represents the marriage by 
 capture, as the friend who was the best man 
 for the work. ' The throwing of slippers ' 
 is supposed to represent the pelting of the 
 man who has captured the bride, or the 
 giving to him the shoe as a token of 
 dominion. 
 
 The meaning of these things is of no prac- 
 tical importance, except in so far as they 
 signify the possessory idea of marriage, and 
 
MARRIAGE AND DIVORCE 33 
 
 the essentially inferior and even chattel- 
 like position assigned to woman. It is, 
 however, important to realise how com- 
 pletely the Christian Church has adopted 
 and blessed the Pagan ideas without realis- 
 ing their moral significance. The world is 
 moving towards individual liberty and sex 
 equality in moral obligation, and without 
 doubt the Church is moving in the same 
 direction; but from a natural reluctance to 
 modify its institutions, it has been pre- 
 vented from realising how responsible it is 
 for the spreading and maintenance of false 
 ideas which are productive of great evil. 
 The pity of it is that instead of qualifying 
 the idea of woman being treated as a ' pos- 
 session/ and raising the conception of 
 marriage to a spiritual level, the Church has 
 expressly dwelt upon the material side of 
 marriage, and definitely encouraged the notion 
 of a woman being handed over to her husband 
 
34 MARRIAGE AND DIVORCE 
 
 to be kept lovingly in a condition of com- 
 plete subordination for life. 
 
 Among the Society of Friends the service 
 is conducted without the intervention of 
 a clergyman or other official, the pair stand- 
 ing hand in hand in the midst of the crowded 
 congregation, while the bridegroom declares as 
 follows : ' Friends, in the fear of the Lord 
 and in the presence of this assembly, I take 
 this my Friend ... to be my wife, promising, 
 through Divine assistance, to be unto her a 
 loving and faithful husband until it should 
 please the Lord by death to separate us/ 
 In equally clear, unfaltering accents the bride 
 is expected to make a similar declaration. 
 Prayer and hymns follow, and the ceremony 
 ends with the public signing of the register. 
 
 By the Marriage and Registration Act, 
 1856, s. 12, no marriage is to be solemnised at 
 a registry office with any religious service, 
 but each party may subsequently be married 
 
MARRIAGE AND DIVORCE 35 
 
 in church or chapel if the minister thinks 
 
 fit. 
 
 At this ceremony each of the contracting 
 
 parties shall say to the other : 
 
 ' I call upon these persons here present to 
 witness that I A. B. do take thee C. D. to 
 be my lawful wedded husband or wife/ 
 Or simply : 
 
 ' I A. B. do take thee C. D. to be my 
 
 wedded husband or wife/ 
 This ceremony is exceedingly curt and leaves 
 much room for improvement, but it has 
 these merits : 
 
 (i.) It is based upon the doctrine of mutual 
 consent by two equally responsible indivi- 
 duals ; 
 
 (ii.) It states nothing which is contrary to 
 
 what is generally accepted as historically true ; 
 
 *"(iii.) It puts upon the contracting parties 
 
 nothing which they cannot be reasonably 
 
 expected to perform; and 
 
 D 2 
 
36 MARRIAGE AND DIVORCE 
 
 (iv.) It assumes to know nothing of the re- 
 ligious feelings of the parties, and leaves the 
 sense of obligation to the individual conscience. 
 
 The insistence upon civil marriage for 
 everybody would give increased importance 
 to the ecclesiastical ceremony and enable 
 the Church to surround the privilege with 
 reasonable conditions as to age, parental 
 consent, health, character, and means, which, 
 as the law now stands, it is powerless to con- 
 trol. This powerlessness of the Church is 
 glaringly exhibited when there is, as some- 
 times happens, competition for marriages. 
 In such cases fees are often unwisely reduced 
 or waived altogether, and on favourite days, 
 such as Christmas or Easter Day, the solemni- 
 sation ceremony is performed for a large 
 number of couples at once. I have been told 
 on good authority of one case where, on the 
 marshalling of the crowd, two friends found 
 themselves standing respectively by the bride- 
 
MARRIAGE AND DIVORCE 37 
 
 elect of the other. Without changing places 
 they went through the whole ceremony and 
 only revealed the fact when signing the 
 register. The clergyman informed them that 
 he could not perform the ceremony over 
 again nor could he unmarry them and it 
 would be necessary to take legal advice on 
 the matter. The couples retired, but in a 
 short time they returned and said that they 
 would not trouble him, they had talked the 
 matter over and thought they could get on 
 very well as they were. 
 
 I have dwelt upon this matter at length 
 because I am convinced that in bad marriage 
 laws and customs are to be found the chief 
 causes of divorce, and my experience the 
 details of which I have reserved for an 
 appendix has led me to believe that the 
 violence which husbands are so commonly 
 guilty of to their wives, and the inconti- 
 nence which is practised in marriage to the 
 
38 MARRIAGE AND DIVORCE 
 
 destruction of the wife's body and soul, is due 
 to the possessory idea of marriage, and the 
 idea of man's domination entitling him to the 
 privileges of a master dealing with a servant, 
 as it used to be in the old days, when the 
 rights of persons in a subordinate position 
 were scarcely considered. 
 
 The old right of correction, for example, 
 which was allowed by Common Law as well as 
 the Canon Law, began to be doubted as early 
 as the reign of Charles II, but, as Blackstone 
 says, ' the lower rank of people who were 
 always fond of the Common Law still claim 
 and exert their privilege, and the Courts of 
 law will still permit a husband to restrain a 
 wife of her liberty in cases of gross mis- 
 behaviour/ Although the law no longer 
 recognises the right of correction it must be 
 borne in mind that bad customs survive for 
 many years the bad laws which gave them 
 birth. 
 
MARRIAGE AND DIVORCE 39 
 
 Let it be remembered in this connexion 
 that I do not refer to persons who keep ser- 
 vants, or to wives who have separate estate 
 and can occasionally enjoy the luxury of a 
 solicitor ; I speak of the working and poorer 
 classes, whose wives are their own servants, 
 and live in economic dependence, in the 
 closest possible quarters, within reach of 
 every sound, and have no means of escaping 
 from the company of husband or children or 
 of cultivating their individual tastes in any 
 sort of privacy. Where is the possibility of 
 happiness for married persons living under 
 these conditions, unless there is a deeply 
 rooted respect and consideration for each 
 other on equal terms, and a real partnership, 
 not only of the w r eekly earnings but of all 
 that affects the employment of both husband 
 and wife, or bears upon the health, education, 
 and training of the children ? The wishes or 
 even ideals of women in good circumstances 
 
40 MARRIAGE AND DIVORCE 
 
 can never be a true measure of right or ex- 
 pediency for their less fortunate sisters. 
 
 It must be the desire of everybody to 
 increase the sanctity of marriage, but this 
 cannot be done by ignorant phrases, such as 
 ' let women give up their political aspirations 
 and return to the nursery and the kitchen/ 
 reported from the Church Congress, nor can 
 it be done by proclaiming the marriage bond 
 indissoluble. There can be no sanctity nor 
 morality, nor any human happiness worthy 
 of the name in marriage without reasonable 
 liberty to maintain and develop their indivi- 
 duality secured to each partner. Improve- 
 ment of moral and material conditions is 
 essential to improved and more lasting 
 marriages. Women's political aspirations are 
 a sign of progress towards such improved 
 conditions, and it is of supreme importance 
 that the Church should, in the interest of 
 national morality, give them its blessing. 
 
MARRIAGE AND DIVORCE 41 
 
 CONCLUSIONS 
 
 1. To emphasise the civil compact and 
 to prevent the scandal of the Church being 
 associated with ill-considered mercenary and 
 immoral marriages, all persons should be 
 compelled to go through the civil form 
 of marriage as the only one giving legal 
 validity. 
 
 2. The Church service should be so 
 modified that, its spiritual character being 
 predominant, it may be offered as a source 
 of strength and inspiration to those only 
 who sincerely desire it from a belief in its 
 sanctity and are willing to submit to condi- 
 tions calculated to promote a happy and 
 permanent marriage. 
 
 3. The marriageable age of young men 
 should be raised from fourteen to twenty, 
 and that of young women from twelve 
 to eighteen ; in Germany the ages are 
 
42 MARRIAGE AND DIVORCE 
 
 twenty-one and eighteen respectively ; and 
 the age should always be proved by a certifi- 
 cate of birth or its equivalent. 
 
 4. The consent of both parents (if living) 
 should be required personally or in writing 
 for both parties up to the age of twenty-one. 
 
 5. A certificate of health must be required 
 showing fitness for marriage to the extent, 
 at least, of the absence of any dangerous or 
 contagious disease. 
 
 6. Some provision for the maintenance of 
 the wife during marriage should be made 
 by contract or settlement, which should be 
 her separate property in the same way as 
 her earnings now are. 
 
 7. To ensure morality in marriage, and 
 proper respect for its conditions, each of 
 the parties must be armed with power of 
 revision or rescission of the contract on 
 equal terms. 
 
 8. Testamentary rights should be so re- 
 
MARRIAGE AND DIVORCE 43 
 
 stricted that neither parent should be allowed 
 to deprive the other of a fair proportion of 
 their estate after death. 
 
 9. The maintenance of a wife and children, 
 made compulsory by law, should be accord- 
 ing to the means and position of the father 
 instead of mere subsistence as it is at 
 present. 
 
 10. The bastardy laws should be so 
 altered that a man's responsibility for his 
 children should be equal in every respect 
 with that of the woman, and such children 
 should bear his name and be entitled to a 
 reasonable share of his estate. 1 Legitima- 
 tion of children by marriage of the parents 
 which was permitted by Canon Law should 
 be restored. 
 
 1 One of the first bills introduced in the Storthing in 
 Norway in 1910, after women had obtained the vote, was 
 to repeal the then existing bastardy law, which is as 
 barbarous as our own, and substitute for it the changes 
 which I have indicated. 
 
44 MARRIAGE AND DIVORCE 
 
 ii. A woman should not lose her domicile 
 by marriage ; all distinction of sex should 
 be abolished before the law, and everything 
 should be done to create or maintain the 
 freedom and equality of women in marriage. 
 
 
APPENDIX TO CHAPTER I 
 
 ' The toad beneath the harrow knows 
 Exactly where each tooth-print goes ; 
 The butterfly along the road 
 Preaches contentment to that toad.' 
 
 RUDYARD KIPLING. 
 
 THE following are some of my own experiences which 
 must be similar to those of all other English 
 magistrates. 
 
 A woman with her eye blackened asks me for 
 a summons against a man whom she hardly knows, 
 and she apologises for troubling me with such a 
 matter; 'but/ she adds, 'he knocked me down 
 as if he had been my husband, and I cannot stand 
 it.' Another asks for protection against her hus- 
 band, and when I inquire the reason, replies : ' I 
 cannot stand it any longer, the language he uses 
 towards me before the children every night is 
 such as I would not like to repeat to your worship, 
 and when I remonstrate he boxes my ears and 
 
 45 
 
46 MARRIAGE AND DIVORCE 
 
 tells me if I don't like his language I can leave 
 him. I have stood this kind of thing for ten years 
 for the sake of the children, but it has been nothing 
 but misery to me.' Or a husband is brought before 
 me for violently assaulting his wife, and when I 
 ask him whether it is true, replies : ' Yes, it's 
 true enough, but she kept nagging me first about 
 money and boots for the children, which she knew 
 well enough I couldn't give her. I am sorry I 
 hurt her, but what else could I do with her ? ' 
 Another woman complains that her husband has 
 thrashed her with his belt, and on inquiry the 
 husband explains : ' She whacked the child because 
 he called her out of her name, and I told her if she 
 did that I would whack her ; and she defied me, so 
 I beat her/ Or a wife takes out a summons for 
 neglect to maintain and says : ' My husband earns 
 good money, but he gives it to me in dribs and 
 drabs just when he thinks he will, and starves me 
 and the children.' And another : ' Please, sir, 
 what can I do with my husband ? He comes home 
 when he likes at one, two, and three in the morning, 
 often drunk, and generally the worse for drink ; he 
 pulls me out of bed and keeps me awake all night 
 just as he thinks he will, and if I complain says 
 he will knock my head off. I'm downright afraid 
 of him ! ' Again : a widower, who had come before 
 
MARRIAGE AND DIVORCE 47 
 
 me for some difficulty of his having engaged a 
 housekeeper at five shillings a week, married her 
 within a month because, as he said, ' I'm no fool. 
 I lost five shillings a week over her as a house- 
 keeper, but as a wife I don't have to give her any- 
 thing/ Or again, a woman summonses a person 
 whom she calls her husband. It turns out that 
 they are living in concubinage, so I bind him over, 
 and grant the woman a summons in bastardy for 
 five children, and I make an order of ten shillings a 
 week for the children. He pays it for a month, 
 and the woman finds the arrangement better than 
 being married, but the man insists upon marrying 
 her in order to quash the order. 
 
 On October 3, a woman applying for process 
 against her husband said : ' I can stand a black 
 eye from my husband as well as most women, your 
 worship, but I cannot stand this ' (showing a long 
 leather strap) ; ' my husband beat me black and 
 blue with this last night, and I want you to 
 stop it.' 
 
 I am not referring to isolated cases, but to 
 constantly repeated experience, and I refrain from 
 detailing many complaints with reference to sexual 
 indulgence, which are not suited to a work for 
 general readers. 
 
 The first two reasons for marriage given in the 
 
48 MARRIAGE AND DIVORCE 
 
 Prayer Book have been strangely adhered to in 
 all this to the complete extinction of the third : 
 ' The mutual help and comfort that one ought to 
 have of the other, both in prosperity and adversity/ 
 Self-indulgence on the part of the man and self- 
 destructive obedience on the part of the woman 
 are commonly accepted as being in strict accord- 
 ance with Church teaching. 
 
CHAPTER II 
 
 DIVORCE 
 
 ' We have thought to tie the nuptial knot of our marriage 
 more fast and firm by taking away all means of dissolving 
 it ; but the knot of will and affection is so much the more 
 slackened and made loose by how much that constraint 
 is drawn closer : and on the contrary that which kept 
 the marriages at Rome so long in honour and inviolate 
 was the liberty everyone who so desired had to break 
 them/ MONTAIGNE. 
 
 HAVING considered the nature of marriage 
 and realised the almost endless possibilities 
 of any particular union proving disastrous, 
 it will cause no surprise to find that man- 
 kind has from the very beginning of history 
 insisted on the power of putting an end to 
 such a union by divorce, so that the history 
 of the one contains the history of the other. 
 
 49 B 
 
50 MARRIAGE AND DIVORCE 
 
 Before the dawn of civilisation, when 
 marriages were unregulated, parties ceased 
 to live together whenever either of them 
 was tired of the bargain, and in the bar- 
 barous condition of polyandry which is 
 said by Caesar to have existed amongst the 
 ancient Britons, and still exists in several 
 parts of the world women had the power 
 of divorcing any so-called husband at will ; 
 otherwise, through all ages this power of 
 divorce has been, with very few exceptions, 
 confined to man alone, and the only question 
 in each country has been how far that power 
 should be unrestricted, and under what 
 conditions it should be exercised, having 
 regard to the wife and family. There has 
 been one great exception to this universal 
 rule, namely, the Roman Catholic Church, 
 which from the tenth century has insisted 
 upon the sacramental doctrine of marriage 
 and its consequent indissolubility. This 
 
MARRIAGE AND DIVORCE 51 
 
 exception will be found on examination to 
 be more nominal than real, but it accounts for 
 the rather curious fact that people are to 
 be found who still consider the question an 
 open one in England, and believe that the 
 present Royal Commission might quite as 
 reasonably restrict as enlarge the sphere 
 of divorce. Such people have not studied 
 history very intelligently, because, if they 
 had, they would have learnt that what 
 the pre-Reformation Church maintained in 
 theory it repeatedly broke in practice when- 
 ever the interests of Church or State or 
 sufficiently powerful private individuals de- 
 manded it. Lecky cites, for example, a 
 case from Coke ' in which a marriage was 
 pronounced null because the husband had 
 stood godfather to the cousin of his wife/ 
 And it will be shown later on that persons 
 living in Roman Catholic countries, who 
 have less scruples or less means, simply 
 
 E 2 
 
52 MARRIAGE AND DIVORCE 
 
 ignore the law, and live in clandestine rela- 
 tions. The Anglican Church is nominally 
 Protestant, and in its national capacity 
 cannot sustain the sacramental doctrine, 
 but many members of the Church, whose 
 sincere piety cannot but command our respect, 
 are still attached to what has been called 
 traditionism or medievalism, and believe 
 that human nature is capable of being and 
 was intended to be controlled by institu- 
 tions. Human nature cannot, in fact, be 
 coerced by ecclesiastical or any other insti- 
 tutions. Men insist upon examining every 
 institution by the test of the highest good 
 for the individual and society. They feel 
 instinctively that marriage was made for 
 man, not man for marriage. Its moral 
 value must consist for them in the mutual 
 happiness secured to those who enter into 
 it ; and a higher ethical standard has caused 
 many acts of indignity and cruelty within 
 
MARRIAGE AND DIVORCE 53 
 
 the marriage relationship to be now resented 
 which it used to be considered an act of 
 piety to condone for the sake of the institu- 
 tion. 
 
 At any rate, in spite of much reluctance 
 due to potent conservative forces, the Eng- 
 lish nation in 1857, in common with all 
 other Protestant nations, adopted the law 
 of divorce, and, in doing so, subscribed to 
 the idea that without it little or no real 
 progress could be made towards a higher 
 standard of morality. We are still far 
 behind other nations in our methods of 
 dealing with divorce, and are still impressed 
 by the pathetic but foolish cry of the 
 institutionalists that, however disastrous, 
 immoral and impossible a marriage may be 
 in fact, the remedy of divorce is worse than 
 the disease. Experience of practical life 
 and the examination of national statistics 
 will, I believe, put an end to this despairing 
 
54 MARRIAGE AND DIVORCE 
 
 view of the subject. It will be found that 
 divorce, which seems to some minds too 
 horrible even to discuss, is the result not 
 the cause of the break-up of the family, and 
 that actual righteousness, as distinguished 
 from conventional, is much more likely to 
 be found in legally putting an end to rather 
 than maintaining a bond which has already 
 been destroyed in practice. It is apt to 
 be forgotten that divorce is sought by 
 innocent people as an escape from intoler- 
 able misery, and that for the guilty it is in 
 the nature of punishment. Some people 
 seem to think that the granting of facilities 
 will force divorce upon unwilling people. 
 That can never be the case ; but for those 
 who seek to raise the standard of morality 
 in daily life the question will be not whether 
 there shall be divorce, but how far it should 
 be extended to both sexes and to every class 
 on equal terms as a means of regeneration, 
 
MARRIAGE AND DIVORCE 55 
 
 without diminishing but rather increasing 
 the profound respect which everyone desires 
 to encourage for a marriage based upon 
 and secured by mutual respect and con- 
 sideration, if not by mutual affection and 
 true communion of spirit. 
 
 A short glance at the history of divorce 
 will prove that it has always been considered 
 a subject of regulation by the State as a 
 secular matter, except for the comparatively 
 short period of ecclesiastical jurisdiction 
 in Christian countries. In Babylonia and 
 Assyria, in India, in Judaea, in ancient 
 Rome, in Ireland and Wales, and in the 
 Anglo-Saxon laws the right of divorce was 
 established by law and by custom for what 
 was deemed to be the well-being of the 
 people. It was for the most part granted 
 to men only, but occasionally to women 
 also, and provision of some kind was always 
 made for the innocent wife and children. 
 
56 MARRIAGE AND DIVORCE 
 
 In no country and among no people was 
 marriage ever decreed to be indissoluble 
 until it was so declared by the Roman 
 Catholic Church. 
 
 In the code of Hammurabi, King of 
 Babylon, 2250 B.C., a husband might put 
 away his wife without stated cause, but 
 divorce was allowed by law on the appli- 
 cation of either husband or wife. The 
 liberty of the husband was restrained by 
 pecuniary penalties in some form of dower 
 or provision for the wife and family. By 
 the Indian laws of Manu it was enacted that 
 ' in childhood a woman must be subject to 
 her father, in youth to her husband, when 
 her lord is dead to her sons ; a woman must 
 never be independent/^' A husband may 
 divorce his wife, but she has no redress for 
 her wrongs ' (Miiller, ' Sacred Books of the 
 East'). By the law of Moses : ' When a man 
 taketh a wife and marrieth her then it shall 
 
MARRIAGE AND DIVORCE 57 
 
 be, if she find no favour in his eyes, because 
 he hath found some unseemly thing in her, 
 that he shall write her a bill of divorcement 
 and give it in her hand and send her out of 
 his house. And when she is departed out 
 of his house, she may go and be another 
 man's wife' (Deut. xxiv. 1-2). 
 
 In the Roman code of the Twelve Tables, 
 449-451 B.C., great freedom of divorce was 
 allowed, but it does not appear to have been 
 made much use of. By the Lex Julia, go B.C., 
 divorce was permitted to either husband or 
 wife, but it was sought to restrain the use 
 of it by pecuniary penalties. Divorce by 
 mutual consent was always allowed, but a 
 bill of divorce was required, given in the 
 presence of seven witnesses, as also the public 
 registration of the divorce. In the year 
 A.D. 331 the Emperor Constantine, the first 
 Christian Emperor, laid down certain causes 
 for which divorce was legally procurable 
 
58 MARRIAGE AND DIVORCE 
 
 without penalties, viz. adultery, murder, 
 preparing of poisons, and violation of tombs, 
 but he did not interfere with divorce by 
 mutual consent. About the year A.D. 500 the 
 Emperor Justinian for the first time restricted 
 the freedom of divorce by consent without 
 law, and finally allowed very few causes for 
 divorce, viz. adultery, long captivity, and 
 reversion to monasticism. He prohibited 
 ' divorce by mutual consent ' under penalty 
 of forfeiture of estates and retirement into 
 monasteries. This prohibition was repealed 
 by his successor Justin (whose law was in 
 force till 900), on the ground, as stated in the 
 novel, that ' it was difficult to reconcile those 
 who once came to hate each other, and who, 
 if compelled to live together, frequently 
 attempted each other's lives/ Solomon says 
 on the same subject : ' A hated woman when 
 she is married is a thing which the earth 
 cannot bear/ Gibbon describes the change in 
 
MARRIAGE AND DIVORCE 59 
 
 a well-known passage as follows : ' He yielded 
 to the prayers of his unhappy subjects and 
 restored the liberty of divorce by mutual 
 consent : the civilians were unanimous, the 
 theologians were divided, and the ambiguous 
 word which contains the precept of Christ 
 is flexible to any interpretation that the 
 wisdom of a legislature can command/ 
 
 The Christian Church in the meanwhile 
 had obtained from the Emperor Constantine 
 the right of establishing Ecclesiastical Courts 
 (A.D. 331), which existed and exercised juris- 
 diction side by side with the Civil Courts 
 for many centuries. They administered the 
 Canon Law and Apostolic Constitutions as 
 well as Ecclesiastical Law, and by degrees 
 the whole subject of marriage and divorce 
 passed entirely from the jurisdiction of the 
 Civil Courts into that of the Ecclesiastical. 
 Under their rule the practice grew up in 
 medieval times of asserting that divorce 
 
6o MARRIAGE AND DIVORCE 
 
 could never be permitted, and, as appears 
 in the previous chapter, the dogma of marriage 
 being a divine sacrament, and therefore indis- 
 soluble, was publicly recognised in A.D. 1164. 
 This opinion was one of gradual growth. 
 Jerome, for example, defended Fabriola for 
 marrying again after divorcing her husband, 
 though he did it on the ground that ' it was 
 better to marry than to burn/ Origen also, 
 and many others, including Tertullian, 
 Ambrose, Chrysostom, Hilary, and Justin 
 Martyr, permitted women after divorce to 
 marry, though their former husbands were 
 alive. It is said, however, that this was 
 4 contrary to scripture/ Many French 
 synods (e.g. those of Vannes in 465 and of 
 Compiegnes in 756) allowed the husband of a 
 wife who has been unfaithful to marry again 
 in her lifetime. Pope Gregory II, in a letter 
 to St. Boniface in the year 726, recommended 
 that the husband of a wife seized by sickness 
 
MARRIAGE AND DIVORCE 61 
 
 which prevented cohabitation should not 
 marry again, but left him free to do so 
 provided he maintained his first wife 
 (quoted by Hafele, ' Beitrage/ vol. ii. p. 376). 
 I don't think this a matter of great import- 
 ance, because whatever opinions were held 
 by the early fathers, the Church always 
 recognised the necessity of annulment for 
 certain causes as well as divorce a mensa et 
 thoro, which is the equivalent of our legal 
 separation. 
 
 Annulment ab initio was allowed for 
 consanguinity and affinity up to the seventh 
 degree, and consanguinity of a spiritual 
 character, such as godparents and godchildren, 
 and even on the ground that a forbidden 
 affinity had been established between persons 
 who had committed adultery ; it was also 
 allowed for impotency and various forms of 
 irregularity in the marriage (see 'Catholic 
 Dictionary/ Impediments of Marriage). 
 
62 MARRIAGE AND DIVORCE 
 
 Divorce a mensa et thoro was allowed for 
 misconduct. 
 
 At the Council of Trent in 1563 the 
 sacramental character of marriage and its 
 indissolubility was laid down for the first 
 time as a matter of law. In England, twenty 
 years before the Council of Trent, a Royal 
 Commission under the Presidency of Arch- 
 bishop Cranmer was appointed by Henry VIII 
 to consider the whole question. This Com- 
 mission finished its labours in the reign of 
 Edward VI and recommended the following 
 changes in the ' Reformatio Legum/ compiled 
 under 3 & 4 Edw. VI, c. n : 'That, in 
 addition to adultery, desertion, continued 
 absence, savage temper and incompatibility 
 of temperament should be good causes for 
 divorce, and that separation without the 
 power of remarriage should be abolished/ 
 Owing chiefly to the death of Edward VI 
 these reforms were not enacted in England, 
 
MARRIAGE AND DIVORCE 63 
 
 but in Scotland divorce for adultery was 
 adopted equally for husband and wife at the 
 time of the Reformation, and in 1573 mali- 
 cious desertion was also accepted there as 
 a good cause for divorce. The Lutheran 
 theologians from the Reformation times 
 down to the present day, with scarcely an 
 exception, have recognised two scriptural 
 grounds of divorce, namely, adultery (Matt, 
 v. 32, xix. 5-9), and wilful or malicious 
 desertion (i Cor. vii. 15). In Elizabeth's 
 reign certain decrees of divorce were pro- 
 nounced by the Ecclesiastical Courts for 
 adultery, but they were stopped by the 
 Star Chamber, and the whole question con- 
 tinued to be regulated by the Canon Law 
 in England, in spite of the Reformation, 
 right up to the middle of the nineteenth 
 century. This is the more extraordinary 
 when it is remembered that in Western 
 Europe, from the beginning of the thirteenth 
 
64 MARRIAGE AND DIVORCE 
 
 century, there had been a movement against 
 the power of the Church underlying all human 
 relations which culminated for Germany in 
 Luther's Confession of the Protestant Faith 
 at Augsburg in 1530, and for England in 
 Henry VIII's schism from Rome in 1532. 
 The result for the English people was that, 
 although divorce for adultery was frequently 
 admitted in practice by ecclesiastical author- 
 ity, the question was theoretically left in 
 doubt. The difficulty was got over by 
 Church fictions of consanguinity or affinity, 
 and from A.D. 1669 to 1857 by private Acts 
 of Parliament for those who could afford it, 
 and for those who could not afford it the 
 consequences, however immoral, were left 
 to take care of themselves. By the Common 
 Law of England, which stood intact till the 
 Matrimonial Causes Act, 1857 (20 & 21 Viet. 
 c. 85), came into operation on January i, 1858, 
 the legal relation of husband and wife, if once 
 
MARRIAGE AND DIVORCE 65 
 
 subsisting, could only be dissolved by the 
 death of either party. The only means of 
 legally dissolving the relation during the 
 lives of the parties joined was an Act 
 of Parliament (as an exceptional act of 
 sovereignty), which is still the law of Ireland 
 and applicable to persons of Irish domicile. 
 Small wonder that Selden wrote : ' Marriage 
 is a desperate thing. The frogs in ^Esop were 
 extremely wise ; they had a great mind to 
 some water, but they would not leap into the 
 well because they could not get out again/ 
 With regard to matrimonial fictions, 
 Bishop Creighton wrote : ' Marriage was a 
 sacrament ; matrimony was indissoluble. 
 But a good many people wished to dissolve 
 it, and a means for this purpose was dis- 
 covered by fencing round matrimony with 
 so many protections that it was really 
 doubtful if anyone was lawfully married 
 or not/ Their importance consists in the 
 
 F 
 
66 MARRIAGE AND DIVORCE 
 
 recognition by the Church that as marriage 
 was necessary for the needs of humanity 
 so divorce was necessary for the proper 
 regulation of marriage. Their absurdity con- 
 sists in the fact that for practical purposes 
 only the rich had the slightest chance of 
 obtaining the necessary decree. When Sir 
 John Paston desired a papal dispensation 
 from a matrimonial engagement, the possible 
 cost thereof is shown in a letter written by 
 him to his brother, dated London, Monday, 
 November 22, 1473, wherein he says : ' I have * 
 answer again from Rome that there is the 
 well of grace and salve sufficient for such a 
 sore and that I may be dispensed with ; 
 nevertheless my proctor there asketh a thou- 
 sand ducats as he deemeth ; ' and Sir John 
 adds : ' Another Rome runner here has told 
 me as he means but a hundred ducats or 
 two hundred at the most ' ; and a friend 
 writing to Paston about this time informed 
 
MARRIAGE AND DIVORCE 67 
 
 him that this kind of transaction was of 
 almost daily occurrence ' Papa hoc fecit 
 hodiernis diebus multocieno/ This is still 
 further emphasised by the private Act of 
 Parliament, to obtain which a very elaborate 
 and expensive process was necessary. To 
 make this clear I cannot do better than quote 
 Mr. Justice Maule's famous address to a man 
 charged before him with bigamy in 1845. 
 1 You should have gone to the Ecclesiastical 
 Courts and obtained a divorce a mensa et 
 thoro, then you should have brought an 
 action and obtained damages which the 
 other side would probably not have been 
 able to pay ; and you would have had to pay 
 your own costs, perhaps a hundred or a 
 hundred and fifty pounds. Then you should 
 have proceeded to the House of Lords, where, 
 having proved that these preliminaries had 
 been complied with, you would have been 
 able to marry again. The expense might 
 
68 MARRIAGE AND DIVORCE 
 
 amount to five or six hundred, or perhaps 
 a thousand pounds. You say you are a 
 poor man, and have not as many pence. 
 But I must tell you that there is not one 
 law for the rich and another for the poor.' 
 It must be remembered that these Acts of 
 Parliament were passed as a matter of course 
 by the Bench of Bishops, so that, as Arch- 
 bishop Manners Sutton said in 1809, ' By the 
 divine law there was a liberty ' (i.e. for 
 divorced persons) ' to marry again or else 
 unquestionably that reverend Bench would 
 before now have interposed.' This position 
 was, of course, maintained by Archbishop 
 Sumner and Tait, then Bishop of London, 
 when they supported the Divorce Act of 1857. 
 These private Acts of Parliament are still 
 the remedy not only in Ireland but also in 
 the Roman Catholic provinces of Canada. 
 
 This ridiculous and impossible condition 
 of things led, as might have been expected, to 
 
MARRIAGE AND DIVORCE 69 
 
 such immorality and defiance of law that a 
 Royal Commission was appointed in 1850 
 to inquire into the matter and suggest a 
 remedy. As W. H. Bishop says : ' Second 
 marriages without divorce, adultery and ille- 
 gitimate children were of everyday occurrence, 
 while polygamy was winked at though a 
 felony on the Statute Book/ The final 
 result of this Commission was the Divorce 
 Act of 1857. The right of remarriage after 
 divorce for those whose marriage bond was in 
 fact broken seemed urgently desirable in the 
 interest of general morality, and the only 
 question appeared to be the extent to which 
 this right should be given. Public opinion 
 had become lax, because the existing law was 
 felt to be unsuitable, a condition of things 
 which once realised cannot be continued 
 with impunity. And yet the proposed change, 
 although in accordance with the views of 
 every other Protestant country, as well as the 
 
70 MARRIAGE AND DIVORCE 
 
 Greek Church, was bitterly opposed by Mr. 
 Gladstone and the Anglican party. It was, 
 however, supported, as before mentioned, by 
 Archbishop Sumner and Tait, who was then 
 Bishop of London, and nine other bishops, 
 and Lord Chancellor Lyndhurst not onty sup- 
 ported it, but pleaded at the same time most 
 earnestly for an extension of the law to wilful 
 desertion as a cause for divorce, on the ground 
 that ' it is likely to contribute to greater pro- 
 priety of conduct because it makes the con- 
 tract much more dependent on the exertions 
 of the parties themselves/ This is the argu- 
 ment which prevailed with the Commissioners 
 in Edward VI' s time, and has since prevailed 
 with every Protestant country except our 
 own. I have been told on good authority 
 that amongst the Jews of Bombay there is 
 absolute freedom of divorce by consent for 
 both sexes, and its effect upon conduct is 
 such that divorce never in fact takes place. 
 
MARRIAGE AND DIVORCE 71 
 
 I am not arguing for such complete liberty 
 in this country, but it cannot be too strongly 
 insisted upon that greater individual freedom 
 invariably creates a greater sense of indivi- 
 dual responsibility. The effect of the opposi- 
 tion was to make the law of 1857 wholly 
 inadequate for its purpose and unequal in 
 its application, but its importance was great 
 in establishing the right of divorce at all, 
 and creating a court of civil jurisdiction for 
 matrimonial causes. 
 
 Its main provisions may be summarised as 
 follows : 
 
 1. All jurisdiction in matrimonial matters 
 is vested in the Civil Court of Divorce. 
 
 2. Cause for divorce against a woman is 
 adultery. The husband may claim damages 
 against the co-respondent for the loss of his 
 wife. 
 
 3. Cause for divorce against a man is 
 adultery coupled with cruelty or desertion for 
 
72 MARRIAGE AND DIVORCE 
 
 more than two years ; bigamy and adultery, 
 incestuous adultery or rape, alone ; and 
 unnatural offence. The wife cannot claim 
 damages for loss of her husband, but the Court 
 may order the husband to pay maintenance. 
 
 4. Judicial separation is substituted for 
 the ecclesiastical separation a mensa et thoro, 
 and may be obtained by either husband or 
 wife for adultery, or cruelty, or desertion for 
 two or more years. 
 
 5. No divorce is granted where collusion 
 between the parties is proved. 
 
 6. No decree of divorce is to be made 
 absolute till six months have elapsed, during 
 which time the King's Proctor may oppose 
 the decree for collusion or on the ground of 
 new facts. 
 
 7. No remarriage is permitted to judicially 
 separated persons. 
 
 8. Remarriage after divorce is permitted, 
 but no clergyman of the United Church of 
 
MARRIAGE AND DIVORCE 73 
 
 England and Ireland is compelled to solemnise 
 the remarriage. 
 
 9. Nullity of marriage may be decreed 
 for impotence, consanguinity, and insanity at 
 date of marriage. 
 
 10. Either husband or wife may sue for 
 restitution of conjugal rights. The Court can 
 order the delinquent to return to live under 
 the same roof, and in case of refusal allow 
 a suit for judicial separation on account of 
 desertion, but not of divorce. 
 
 It will be observed that the object of the 
 Act appears to be a concentration of remedies 
 rather than a reform of the law. It has in 
 effect brought the remedy of divorce within 
 reach of the middle classes, but it has entirely 
 failed to reach the bulk of the nation, the 
 working classes and the poor. The cost of a 
 decree is approximately 100. Besides this, 
 it is open to grave criticism on the ground 
 that it is unjust, illogical and immoral. It 
 
74 MARRIAGE AND DIVORCE 
 
 sets up a different standard of offence for 
 the two sexes. It inflicts the heavier penalty 
 of separation for the lesser offences ; and 
 it enables the suitor to choose which punish- 
 ment he or she will inflict, which is often 
 unjust. In refusing to grant divorce, except 
 for adultery, it actually encourages immoral- 
 ity, and in granting separations without the 
 power of remarriage it promotes immoral- 
 ity, illegitimacy, and , concubinage. It is 
 illogical if it professes to have in view the 
 maintenance of the objects of marriage, 
 because, as Mr. Gladstone argued, ' We have 
 many causes more fatal to the great obliga- 
 tions of marriage (than adultery), such as 
 disease, idiocy, crime involving punishment 
 for life, and which, if the bond be dissoluble, 
 might be urged as a reason for divorce/ It 
 certainly should, to be logical, have included as 
 causes for divorce, permanent desertion and 
 insanity, even if it rejected chronic alcoholism. 
 
MARRIAGE AND DIVORCE 75 
 
 It will naturally be a matter of surprise 
 and wonder that, with so much evidence of 
 evils to be remedied, so little was accomplished 
 or even attempted by this Act. It must be 
 remembered, however, that the men of the 
 nation were not enfranchised until ten years 
 later, in 1867, and that the interests of the 
 voteless are invariably misunderstood or neg- 
 lected by those whose professed duty it is to 
 safeguard them. 
 
 The obvious defect of the Divorce Act, 
 that it was a law for the rich and not for the 
 poor, was attempted to be remedied by the 
 Summary Jurisdiction Matrimonial Causes 
 Act, 1895, which enables a wife to obtain a 
 judicial separation before a magistrate with 
 little cost for 
 
 1. Aggravated assault. 
 
 2. Persistent cruelty. 
 
 3. Desertion. 
 
 4. Neglect to maintain. 
 
76 MARRIAGE AND DIVORCE 
 
 But just as the Divorce Act limited its atten- 
 tion to the physical offences against marriage, 
 so this Act is limited to relief of obvious 
 misery without regard to the moral conse- 
 quences. It has given a very necessary pro- 
 tection to thousands of women from actual 
 danger and distress, but it has enforced upon 
 them and upon their husbands in exchange 
 a life of celibacy or immorality. It has, 
 without any good cause, failed to give the 
 husband any share in these remedies, but 
 what is most important is that it has failed 
 to give the wife any remedy for the adultery 
 of her husband. On two or three occasions 
 I have had a wife seek relief because her 
 husband had compelled her to sleep in the 
 kitchen while he took a strange woman into 
 his bed. In each case the husband had care- 
 fully refrained from cruelty in the shape of 
 violence, he had not deserted his wife nor 
 neglected to maintain her. The Summary 
 
MARRIAGE AND DIVORCE 77 
 
 Jurisdiction Act gave her no remedy, and 
 she was obliged to put up with it or go to 
 the Divorce Court at a cost which was known 
 to be absolutely prohibitive. Prolonged or 
 permanent separations necessarily lead to 
 immorality or breach of law in many cases, 
 and as a remedy for matrimonial offences 
 can only be looked upon as a failure in legis- 
 lation from the national point of view. A 
 further attempt was made to meet the matri- 
 monial difficulties of the poor by the Licensing 
 Act of 1902 (2 Edward VII, c. 28, s. 5), which 
 gave either husband or wife the remedy of 
 separation in a police court for habitual 
 drunkenness. This Act, like its predecessors, 
 suffers from a total disregard of the moral 
 consequences. For a woman to get a tem- 
 porary separation from her husband under 
 this Act is a good thing, because it often leads 
 to his reformation; but for a man to get a 
 separation from his wife and merely make 
 
78 MARRIAGE AND DIVORCE 
 
 her an allowance of six or seven shillings a 
 week is to court disaster for the woman. 
 The separation is sure to become permanent 
 unless power is given to a magistrate to 
 send her to a home for a time whether she 
 consent or not ; in that case she may have 
 some chance of being restored to sobriety, 
 and to her husband. 
 
 I doubt whether from a moral point of 
 view the English nation is much improved 
 since the time of 1850, when a Royal Com- 
 mission was appointed to seek a remedy. It 
 is certain that an increasing number of persons 
 refuse any longer to submit to conditions 
 which are replete to them with indignities 
 and miseries, no matter by what authority 
 or alleged necessity they are imposed, and, 
 because they find no remedy in law, too 
 frequently relapse into ties unsanctioned by 
 morality. It is reported by Court mission- 
 aries and other experienced persons that in 
 
MARRIAGE AND DIVORCE 79 
 
 many parts of London little or no regard for 
 marriage is to be found. 
 
 In 1900, 6661 separation orders were made 
 by courts of summary jurisdiction in England 
 and Wales, and that number has been main- 
 tained or slightly increased ever since, so that 
 some idea can be formed of the immense 
 number of persons in the country who, for 
 purposes of immorality, are divorced, but 
 not for purposes of morality. 
 
 During the last fifteen years over 200,000 
 married persons in England and Wales have 
 been separated by legal process either in 
 courts of summary jurisdiction or in the 
 High Court, and it is estimated that, in 
 addition, at least 50,000 persons have, during 
 the same period, separated by private agree- 
 ment, making a grand total of 250,000 
 persons who have been legally separated, i.e. 
 divorced without the power of remarriage. 
 
 In the same year 1900 there were 40,000 
 
8o MARRIAGE AND DIVORCE 
 
 bastards born, and it is not too much to say 
 that deserted wives form a large proportion 
 of the population in our workhouses. These 
 figures are surely calculated to make the 
 most prejudiced admit that the remedy of 
 separation is attended by fearful conse- 
 quences, whatever the result of granting 
 divorce might be. 
 
 The advocates of judicial separation cling 
 pathetically to the plea that ' it leaves open 
 always the possibility of reconciliation/ 
 whereas divorce closes it. This is more 
 than a vain plea, it is a cruel one, at the 
 expense of others whose miseries are appre- 
 ciated only by those who diligently study 
 the question, or are gifted with keen and 
 sympathetic imagination. 1 It is also urged 
 
 1 The Bishop of Birmingham in explaining, before the 
 Royal Commission, the indissolubility of the Christian mar- 
 riage tie, said that he would not give release even to a woman 
 forced by her husband to earn her living upon the streets. 
 He would give her only the protection of separation. 
 
MARRIAGE AND DIVORCE 81 
 
 by some that there is no demand for divorce. 
 The desire for relief is shown by those 
 numbers who have sought the remedy of 
 separation without the power of remarriage ; 
 but who calls for a demand when he is faced 
 by a crying injustice, and a condition of 
 gross immorality ? Those who suffer ship- 
 wreck in marriage are naturally reticent, 
 and women, upon whom the dangers and 
 possible miseries of marriage mostly fall, 
 are made dumb by law for all legislative 
 purposes. The contented are generally apt 
 to miss the cry of distress from the unhappy, 
 but they add insult to injury when they 
 blame the unhappy for failing to enlist their 
 sympathy. It is becoming a stock phrase 
 for prejudiced persons who are troubled 
 by conscience to repeat, ' Yes, the demand 
 is clearly just and expedient, but I doubt 
 whether a majority of the persons con- 
 cerned are in favour of it/ There is no 
 
82 MARRIAGE AND DIVORCE 
 
 substance whatever in this plea. It has 
 happened before now that divorced persons 
 have been reconciled and married again, 
 though, of course, the miseries of separation 
 render the chances of husband and wife 
 coming together again greater. But experi- 
 ence is clear upon this point that such 
 coming together is mostly due to economic 
 considerations, it is often obtained by duress, 
 and if the separation has been at all pro- 
 longed, instances of true reconciliation are 
 so rare as to be a negligible quantity for 
 practical minds. 
 
 The real reason for clinging to separation 
 is the prejudice against innovation, mistrust 
 about the verbal interpretation of our Lord's 
 words, and the very decided leaning of large 
 numbers of Church people to the Roman 
 Catholic dogma of sacramental indissolubility. 
 
 The best way of understanding the unique 
 position of this country in regard to divorce 
 
MARRIAGE AND DIVORCE 83 
 
 is to compare it with other Protestant 
 countries throughout the world. 
 
 In modern England the State is at 
 present actively promoting in every police 
 court the separation of husband and wife 
 without the possibility of remarriage, and 
 it legalises and enforces voluntary separa- 
 tions, both public and private, in every class 
 of life. 
 
 In modern Germany the separation of 
 
 husband and wife without power of re- 
 marriage is not recognised by the State, 
 except in the case of Roman Catholics, 
 and even then a separation is subsequently 
 convertible into a divorce at the option of 
 either party. The remedy of separation, 
 whether voluntary or compulsory, is con- 
 demned as contrary to public policy. 
 
 On the Continent marriage by arrange- 
 ment is the rule, and liberty to break it 
 has been enlarged. In England marriage is 
 
 G 2 
 
84 MARRIAGE AND DIVORCE 
 
 supposed to be by consent, and liberty to 
 break it has been exceptionally restricted. 
 
 The study of legal statistics of divorce 
 cannot, of course, give anything like an 
 accurate account of the marriages in each 
 country which have, in fact, failed to fulfil 
 their purpose, because so many persons of 
 both sexes are naturally or by training 
 accustomed to submit to every sort of in- 
 dignity and trouble rather than break up 
 the family, or reveal their unhappiness to 
 the world; but no fault can be found with 
 a table of comparison when it is remembered 
 that all the figures are subject to the same 
 criticism. At any rate, as many English 
 people are inclined to find satisfaction in 
 the small number of the divorces obtained 
 in this country, it is of vital importance to 
 inquire whether this self-satisfaction is well 
 founded or whether it is delusive, and evi- 
 dence only that the institution of marriage 
 
MARRIAGE AND DIVORCE 85 
 
 is more strictly preserved in this country 
 by disregard of human happiness, and at 
 the expense of the wives, the poorer and 
 more ignorant part of the population and 
 national morality. It must often seem like 
 irony to insist upon the apostolic injunction 
 to ' rejoice evermore ' when dealing with 
 those who, by our own legislative acts, are 
 made so fast in a prison of soul-crushing 
 unhappiness that they cannot get forth. 
 
 The following table, supplied by the 
 Divorce Reform Union, shows the number 
 of divorces and marriages in all Protestant 
 countries, or amongst Protestants in Roman 
 Catholic countries, wherever statistics are 
 available, together with the causes which have 
 been admitted for divorce. The figures parallel 
 to the name of each country represent, where 
 obtainable, the number of marriages and 
 divorces in the stated year, and the proportion 
 of divorces per 1000 marriages approximately. 
 
86 MARRIAGE AND DIVORCE 
 
 Good Cause for Divorce. 
 
 idultery. Condemnation for crime. 
 Wilful desertion. Immoral habits. 
 Infectious diseases. Ill-treatment. 
 Threats. Serious vexations. Un- 
 conquerable aversion after separa- 
 tion has been tried and found 
 useless. 
 
 dultery. Malicious desertion. Local 
 desertion. Condemnation to im- 
 prisonment for ten years. Mur- 
 derous attempt on partner or 
 child. Marked enmity, dislike, 
 and aversion, after separation has 
 been tried. 
 
 fife's adultery. Husband's habitual 
 adultery in his home. Outrageous 
 conduct. Ill-usage. Grievous in- 
 jury. Condemnation to infamous 
 punishment. Unwavering and legal 
 expression of parties that their com- 
 mon life is insupportable. 
 
 
 ^ 
 
 < 
 
 & 
 
 ill 
 
 
 
 
 
 V Jo 
 
 
 
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 t a| 
 
 N N 
 
 
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 10 
 
 
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 Country. 
 
 111 1 
 
 
MARRIAGE AND DIVORCE 87 
 
 1 
 a 
 
 i 
 
 o 
 
 oncealed impotency. Leprosy. 
 Incurable insanity. Adultery. 
 Bigamy. Penal servitude for three 
 
 <D 
 
 I 
 1 
 
 1 
 
 1 
 I 
 
 fife's adultery. Husband's adultery, 
 coupled with cruelty or desertion 
 for two years. Bigamy. Unnatural 
 crime. Rape. 
 
 dultery. Acts of violence, includ- 
 ing abusive language. Desertion. 
 Continued refusal. Disease. 
 
 Habitual drunkenness. Concealed 
 premarital unchastity of the wife. 
 Conviction for crime over five 
 years. Separation after three years, 
 dultery. Desertion. Refusal. Im- 
 potence. Disease. Insanity, but 
 not idiocy. Acts of violence or 
 gross abuse. Confinement for 
 crime in a fortress, or flight to 
 avoid such punishment. Drunken- 
 ness and incurable extravagance. 
 Refusal of maintenance. Insuper- 
 able aversion. 
 
 
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88 MARRIAGE AND DIVORCE 
 
 MLlaSl 
 
 
 
 llis JJ gi 
 
 Prop or ti 
 of 
 Divorce 
 per Mille. 
 
 
 8 
 JL 
 
 & 
 
 
 S 
 5 
 
 
 -8 
 
 O 
 
 
 
 5 
 
 W 
 
MARRIAGE AND DIVORCE 
 
 89 
 
 d c 
 
 ^ o a 
 
 s --g a 
 
 IP* 
 
 ji 
 
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 s . 
 
 R.8|1, 
 
 ^'11 S.- 8 1 
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 OA 
 
90 
 
 MARRIAGE AND DIVORCE 
 
 Good Cause for Divorce. 
 
 Adultery. Malicious desertion. 
 Bigamy. Unnatural crune. Rape, 
 
 Adultery. Infidelity after betrothal. 
 Incurable disease. Murderous 
 attempt. Insanity over three 
 years, declared incurable. Mutual 
 aversion. Sentence to loss of civil 
 rights. Conviction of grave crime. 
 Prodigality. Drunkenness. Vio- 
 lent temper. 
 
 Adultery. Unnatural crime. Bigamy. 
 Malicious desertion for three years. 
 Disappearance for seven years. 
 Penal servitude over seven years. 
 Impotency. Leprosy, or incurable 
 disease. 
 
 Adultery. Murderous attempt. Ill- 
 usage. Sentence to degrading 
 punishment. Wilful desertion for 
 two years. Incurable insanity for 
 three years. 
 
 Proportion 
 of 
 Divorces 
 per Mille. 
 
 . 
 
 N 
 
 M 
 
 00 
 
 * 
 
 i 
 
 g 
 
 00 
 
 M 
 
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 CO 
 
 M 
 
 
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 d 
 
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 TJ 
 
 1 
 
 
 
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 53 
 
 TJ 
 
 
 
 M 
 
 
 
 i 
 
 lz 
 
 1 
 
MARRIAGE AND DIVORCE 91 
 
 for Di 
 
 <S > o'S'S 
 S ^ J. o .o g 
 ss" d C 
 
 lllli 
 
 of 
 Divo 
 per 
 
 
 ble for a 
 between 
 rns only 
 marriage 
 nced to 
 So far 
 of these 
 to show 
 lle ; but 
 nd should 
 some ifty 
 
 labl 
 s 
 tur 
 f 
 ou 
 ct. 
 o 
 
 ail 
 
 v 
 ye 
 ose re 
 tics of 
 pron 
 corr 
 turn 
 
 ect 
 s 
 m 
 er m 
 ble, a 
 were s 
 86. 
 
 p 
 
 a 
 
 the 
 n tho 
 statis 
 h are 
 ately 
 te re 
 they 
 55*5 
 unrel 
 There 
 n in 1 
 
 retur 
 than 
 nd i 
 give 
 whic 
 approxim 
 incomplet 
 States go, 
 proportion of 
 figure is quite 
 lisregarded. T 
 ss in the 
 
 33,316, less 
 Roman Cathol 
 I3,3i 
 
 
 d 
 
 1 1 
 
 o 
 
 o , 
 
92 MARRIAGE AND DIVORCE 
 
 Good Cause for Divorce. 
 
 Adultery. Malicious desertion. Un- 
 natural crime. Perpetual imprison- 
 ment. Long absence. Refusal. 
 
 Adultery. Malicious desertion for 
 eighteen months. 
 
 i 
 
 o 
 
 'd 
 
 1 
 
 
 
 1 
 
 
 oj 
 
 1 
 
 Adultery. Unnatural crime. Wilful 
 desertion for three years. Con- 
 tinued drunkenness and refusal of 
 support for two years. Imprison- 
 ment for seven years. Frequent 
 conviction and denial of support. 
 Murderous assault. Repeated 
 cruelty during two years. 
 
 Almost identical with England. 
 
 I 
 .s 
 
 3 
 
 H 
 
 ' The same as in England. 
 
 Q . 
 
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MARRIAGE AND DIVORCE 93 
 
 x>d Cause for Divorce. 
 
 Wilful desertion for three 
 Habitual drunkenness for 
 ars coupled with denial of 
 or cruelty. Imprisonment 
 jn years. Frequent con- 
 and denial of support. 
 >us assault. 
 
 Wilful desertion for five 
 Habitual drunkenness and 
 o support, or drunkenness 
 lect. Penal servitude for 
 ars. Murderous attempts. 
 
 1 
 "5 
 
 1 
 
 .3 
 g 
 
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 $4* II g 6 
 
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 &5 S g 
 
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94 MARRIAGE AND DIVORCE 
 
 From this table it will be seen that there 
 are no Protestant countries in the world, 
 except England and five or six of her colonies, 
 which require that adultery on the part of 
 the man should be combined with cruelty 
 or desertion to justify divorce. Everywhere 
 else the wife is allowed divorce for adultery 
 equally with the husband. 
 
 Almost every country and every colony, 
 except those which have our own laws of 
 divorce, include among the good causes of 
 divorce desertion, prolonged separation or 
 imprisonment for some term or other. 
 We learn further that cruelty, habitual 
 drunkenness, and incurable insanity are also 
 causes very generally accepted. 
 
 One of the first acts of the New Portu- 
 guese Republic on November 2, 1910, was 
 to draft the divorce laws as follows : 
 
 'Divorce is granted on account of 
 adultery, ten years' desertion, insanity if 
 
MARRIAGE AND DIVORCE 95 
 
 pronounced incurable after three years, im- 
 prisonment for a long term, or by mutual 
 consent. The custody of the children is 
 given to the applicant for divorce or to the 
 nearest relative, but they must be main- 
 tained by the divorced parties. Alimony is 
 payable to either of the parties who may be 
 without means, but is terminable on the 
 marriage of the recipient or in the case of 
 immoral conduct. The divorced person for- 
 feits the benefits of the marriage contract. 
 Divorce by mutual consent will only be 
 granted after two years of married life, 
 both parties must be over twenty-five years of 
 age, and the decree will not be made absolute 
 until the application of the parties after one 
 year's trial. Divorced women may only marry 
 after an interval of one year, and men after 
 six months. A child born within 300 days 
 after divorce will be considered legitimate/ 
 It is well to bear in mind before we 
 
96 MARRIAGE AND DIVORCE 
 
 consider the comparative figures that the 
 intention of all divorce laws is primarily an 
 intention of restraint. Divorce is, in fact, 
 as before stated, in the nature of a punish- 
 ment to the guilty party as well as a relief 
 to the innocent one. The wider, therefore, 
 the laws are, the greater the number of 
 persons who are brought under restraint, 
 and the more their effect should tend to 
 morality so long as their severity is not of 
 such a nature as to produce rebellion, nor 
 their extension so wide as to conduce to 
 laxity. It is clear that the ratio of divorce 
 taken per thousand marriages will, as a 
 rule, vary according to the facilities granted 
 by the divorce laws up to a reasonable 
 standard ; the exceptions make us realise 
 that the morality of a nation depends upon 
 something other than artificial regulations of 
 the State, and that the power of legislation 
 to affect conduct is remarkably limited. 
 
MARRIAGE AND DIVORCE 97 
 
 In England and Wales the ratio is 2-5, 
 in Scotland it is 6 per thousand marriages ; 
 and in Scotland the rule since the Refor- 
 mation has been to recognise sex equality 
 in the matter of adultery, and to include 
 malicious desertion as a cause for divorce. 
 
 In European countries we find with some 
 surprise that Switzerland heads the list 
 with forty divorces per thousand marriages. 
 Germany comes next with a ratio of thirty 
 divorces. The causes for divorce in Switzer- 
 land are adultery, murderous attempt, ill- 
 usage, sentence to degrading punishment, 
 wilful desertion for two years and incurable 
 insanity for three years. In Germany they 
 are adultery, desertion, refusal, impotence, dis- 
 ease, insanity, but not idiocy, acts of violence 
 or gross abuse, confinement for crime in a 
 fortress, or flight to avoid such punishment, 
 drunkenness and incurable extravagance, 
 refusal of maintenance, insuperable aversion. 
 
98 MARRIAGE AND DIVORCE 
 
 This shows at once how difficult it is to 
 forecast the result of a change in the laws, 
 seeing that Switzerland, with a law less 
 wide than that of Germany, reveals a higher 
 divorce rate by 33 per cent. 
 
 Again, let us compare the Netherlands 
 with Sweden. The causes in the former 
 country are confined to adultery, malicious 
 desertion, imprisonment for four years, and 
 acts of dangerous violence, and we find 
 the ratio of divorce is 14 per thousand mar- 
 riages; and in Sweden, where the causes 
 comprise adultery, infidelity after betrothal, 
 incurable disease, murderous attempt, in- 
 sanity over three years declared incurable, 
 mutual aversion, sentence to loss of civil rights, 
 conviction of grave crime, prodigality, 
 drunkenness and violent temper, we find the 
 lesser ratio of 12 per thousand marriages. 
 
 Turning to the colonies we notice that 
 New South Wales and Victoria have widened 
 
MARRIAGE AND DIVORCE 99 
 
 the laws by adopting, as in New Zealand, 
 the equality of the sexes in regard to adultery, 
 and including such causes as malicious deser- 
 tion, long term of imprisonment, drunken- 
 ness, murderous assault, repeated cruelty, 
 denial of support, and refusal. Victoria and 
 New Zealand show an almost identical ratio 
 of 14*9 and 14*5, that is to say, their laws 
 are practically identical, and their ratio is 
 identical. New South Wales, which has the 
 widest laws, reveals a ratio of 26 per thou- 
 sand, but this high ratio is said to have been 
 exceptional, owing to an accumulation of 
 cases before the passing of its Divorce Act 
 of 1892 (the census was taken in 1900). 
 The Cape of Good Hope, with a more re- 
 stricted Divorce Law, has a ratio of only 
 8 '4 per thousand marriages, and Natal, 
 with still greater restrictions, has 5-1. The 
 Colonies which have maintained the strict- 
 ness of the English law, and upheld sex 
 
ioo MARRIAGE AND DIVORCE 
 
 inequality, show a ratio of 3 per thousand, 
 very much like that of England and Wales 
 (2*5) ; and Canada also, with a law similar 
 to that of England, has a ratio so low as 
 i per thousand marriages ; but this is fully 
 accounted for by the fact that in four of her 
 provinces it is still necessary to obtain an 
 Act of Parliament to procure a divorce, and 
 the expense is prohibitive. Moreover, it has 
 to be observed that in the United States 
 for the twenty years 1887-1908 there were 
 6000 divorces granted to Canadians who had 
 acquired a residence in the U.S.A. for the 
 ostensible purpose of getting divorces. That 
 gives an average of 300 divorces per annum, 
 which added to those obtained in Canada 
 makes the divorce rate there 5 -26 per thousand 
 against the rate of two in England and 
 Wales, and shows how the stringency of 
 divorce laws may result in loss of citizens. 
 These figures show the working of the 
 
MARRIAGE AND DIVORCE 101 
 
 rule, just as in Roman Catholic countries 
 where no divorces are allowed by law the 
 returns are nil, as, for example, in Italy, 
 Spain, and South Carolina. But nobody 
 would seriously maintain that this absence 
 of legal divorce, where none can be obtained, 
 is an index of greater morality in these 
 countries. In fact, in South Carolina, the 
 only State in the American Union which has 
 no divorce laws and consequently no divorces, 
 according to an eminent authority concu- 
 binage is so generally recognised that the 
 laws of inheritance have had to be modified. 
 
 ' South Carolina has found it necessary 
 to regulate by law the proportion of his pro- 
 perty which a married man may give to the 
 woman with whom he has been living in 
 violation of the law/ Judge Stevens (The 
 Outlook, June 8, 1907, p. 288). 
 
 There are, however, many people who 
 still think it a matter of congratulation that 
 
102 MARRIAGE AND DIVORCE 
 
 in England we can produce such low figures 
 as a divorce rate of 2*5 per thousand mar- 
 riages, presumably considering that this is an 
 indication of greater national morality. I 
 would have them consider in the first place 
 that wives cannot obtain divorce for the 
 adultery of their husbands, and that the 
 bulk of our population is excluded from 
 the divorce law by want of means so 
 that, to be accurate, we must add to the rate 
 of 2 '5 divorce returns a rate to represent the 
 separations which the poor have had to 
 adopt as a substitute, because a legal separa- 
 tion is equivalent to divorce without the 
 power of remarriage. It will be found that 
 not less than 7000 separations are granted 
 under the Matrimonial Causes Act every year 
 in the police courts of England and Wales, 
 and if these are added to the divorces the 
 ratio for England rises to the figure of 27-9 
 per thousand marriages, which is consider- 
 
MARRIAGE AND DIVORCE 103 
 
 ably larger than that of France. I know it 
 will be said that many of these separations 
 are followed by reconciliation, but, as I have 
 before observed, this confidence is far from 
 being justified by experience. On the other 
 hand, experience does show the disastrous 
 effect of compelling a large portion of our 
 population to choose between celibacy and 
 immorality ; and it is impossible to think 
 with complacency of our national morality so 
 long as our police courts are perpetually 
 occupied in dealing with disorderly houses and, 
 as has been before stated, 40,000 illegitimate 
 children are born every year in England and 
 Wales, to say nothing of the deserted wives who 
 are so frequently found in our workhouses. 
 
 I now turn to the United States, which 
 deserves some particular consideration be- 
 cause it is so frequently referred to by the 
 opponents of divorce as a warning to those 
 who would increase the facilities in this 
 
104 MARRIAGE AND DIVORCE 
 
 country. It is difficult to get accurate figures 
 from all the fifty States and territories, and 
 it would be beyond the scope of this work to 
 discuss them in detail if they were available, 
 but there is no doubt that the divorce rate in 
 America is larger than in any other country, 
 and that it shows a decided tendency to 
 increase. 
 
 The Recommendation of the National 
 Congress on uniform divorce in 1905 was to 
 limit the causes of divorce to the following, 
 namely : 
 
 A. Causes for annulment of the marriage 
 contract. 
 
 1. Impotency. 
 
 2. Consanguinity and affinity pro- 
 
 perly limited. 
 
 3. Existing marriage. 
 
 4. Fraud. 
 
 5. Insanity, unknown to the other 
 
 party. 
 
MARRIAGE AND DIVORCE 105 
 
 B. Causes for Divorce a vinculo. 
 
 1. Adultery. 
 
 2. Bigamy. 
 
 3. Conviction of crime involving 
 
 two years' imprisonment. 
 
 4. Intolerable cruelty. 
 
 5. Wilful desertion for two years. 
 
 6. Habitual drunkenness. 
 
 C. Causes for legal separation or divorce 
 
 a mensa. 
 
 1. Adultery. 
 
 2. Intolerable cruelty. 
 
 3. Wilful desertion for two years. 
 
 4. Hopeless insanity of husband. 
 
 5. Habitual drunkenness. 
 
 From a reformer's point of view the important 
 thing to ascertain is how far the increased 
 and rising rate is due to changes in the law. 
 Professor Willcox, in his study of the influence 
 of legislation on divorce, demonstrates con- 
 clusively that there is practically no causal 
 
io6 MARRIAGE AND DIVORCE 
 
 connexion between the changes in the law 
 and the rise in the divorce rate, after the 
 average standard of facility has been reached. 
 This may be doubted by the casual observer 
 who seeks in statistics only that which he 
 desires to find, but the earnest student will 
 find it curiously confirmed by an impartial 
 examination of the figures. In the first place, 
 the whole trend of legislation and administra- 
 tion in America has of late years been towards 
 greater stringency in regard to remarriage 
 of divorced persons, but it has had no effect 
 upon the rising rate. In the second place, a 
 study of the changes in causes reveals the 
 fact that in no instance is there the slightest 
 suggestion that the divorce rate has been 
 materially influenced by the introduction of 
 new causes. 
 
 Restrictions upon remarriage are very 
 general and based upon the assumption 
 that persons who seek divorce do so in 
 
MARRIAGE AND DIVORCE 107 
 
 order that they may immediately remarry. 
 Statistics prove that this popular idea is 
 erroneous. The marriage rate of divorced 
 persons is practically the same as that of 
 widows and widowers, and of such marriages 
 during the period from 1887 to 1906 only 
 127 per cent, took place within a year 
 from separation, while 72*2 per cent, 
 ranged between one and five years. Pro- 
 fessor Willcox says that the only per- 
 ceptible influence of restriction on marriage 
 is to increase illegitimacy, but it is ex- 
 tremely important to remember that the 
 increasing knowledge of means to prevent 
 conception has rendered statistics of ille- 
 gitimacy much less reliable than they used 
 to be. It is also to be noted that raising 
 the age for the marriage of minors or the 
 age below which the consent of parents 
 is required has had practically no effect. 
 Marriages have been deferred at the same 
 
io8 MARRIAGE AND DIVORCE 
 
 rate, whether these changes have been 
 made or not, so that we must infer that 
 the cause is economical rather than legal. 
 The interesting conclusion from a study 
 of these statistics is that within certain 
 reasonable limits legislative restrictions or 
 facilities have strangely little effect upon 
 the number of divorces. Secondly, as Mr. 
 Bryce, our Ambassador, says, ' On the whole, 
 there seems to be no ground for concluding 
 that the increase of divorce in America 
 necessarily points to a decline in the standard 
 of domestic morality, except perhaps ( in a 
 small section of the wealthy class, though it 
 must be admitted that if this increase should 
 continue it may tend to induce such a decline/ 
 The reasons for this increase, which is to be 
 found though in a less degree all over the 
 world, must be sought in more general causes 
 than local legislation. It is an index of 
 many reasons for discontent with the existing 
 
MARRIAGE AND DIVORCE 109 
 
 conditions of marriage, and is not by any 
 means necessarily a sign of moral deteriora- 
 tion, but rather the reverse. It marks a 
 period of readjustment which, wisely dealt 
 with, must end in moral advance, and is only 
 likely to be disastrous if met by reaction. 
 
 This subject is more fully dealt with in 
 Part III of the following chapter. The 
 refusal of the Church to modify its doctrine 
 and alter its service is due to a very natural 
 reluctance to admit mistake in a matter 
 of vital importance and relinquish control 
 of a sphere which is now shared with the 
 State. But an unchanging Church cannot 
 remain in perfect tune with a changing 
 Society, and no religious influence can be 
 retained if it seems to oppose new moral 
 aspirations. 
 
CHAPTER III 
 
 THE ARGUMENTS FOR AND AGAINST 
 INDISSOLUBILITY 
 
 (i) THE WORDS OF SCRIPTURE 
 
 ' It will best behove our soberness to follow rather 
 what moral Sinai prescribes equal to our strength than 
 fondly to think within our strength all that lost Paradise 
 relates.' MILTON. 
 
 BEFORE passing to my own conclusions I 
 think it will be useful to examine shortly 
 the argument of those who maintain that, 
 in spite of everything which can be proved 
 of evil consequences, there should be no 
 changes in the law, and who deprecate the 
 very limited facilities for divorce now existing. 
 I think many persons who hold such views 
 would consider that no argument is required 
 to support them, either because Christ said 
 
 no 
 
MARRIAGE AND DIVORCE in 
 
 ' Whom God hath joined together let not man 
 put asunder/ or because the Church has said 
 that marriage is a sacrament and indissoluble 
 and their devotion to the Church or to the 
 literal words of Scripture is such that they 
 would feel it sacrilegious or sinful to discuss the 
 question. They are like pilots who insist upon 
 steering their vessels by a chart, made in 
 old, unscientific days, on which many rocks 
 and shoals are unmarked, which have been 
 since discovered. Their vessel is constantly 
 jeopardised, and their only remedy is to 
 lighten the ship by letting every passenger 
 who would prefer safer navigation get over- 
 board and find some other vessel if he can, 
 or drown. It is possible to accord some 
 measure of respect for this uncompromising 
 attitude, but it is impossible to feel any- 
 thing but profound pity for the passengers. 
 The argument for indissolubility is entirely 
 theological, and as such has nothing to do 
 with a practical work ; but, in so far as 
 
MARRIAGE AND DIVORCE 
 
 it has been controverted by theologians, 
 there is some hope of winning assent to a 
 more reasonable view by setting down what 
 has been, and still is, urged on the other side. 
 Milton, Bucer, and many other learned 
 persons have written treatises to prove that 
 in the Bible itself divorce was not only 
 permitted, but even enjoined, in such a 
 way that it is as binding upon Christians as 
 upon Jews. The passage in Malachi upon 
 which they rely for enjoining divorce has no 
 authority whatever in the present trans- 
 lation, and will only appeal to those who 
 choose to accept Calvin's version. Under 
 the circumstances it may be dismissed as 
 unimportant, and reliance must be placed, 
 if at all, upon their other reasoning. They 
 contend that Christ came to fulfil the law, 
 not to break it St. Matthew v. 17 : ' Think 
 not that I am come to destroy the law or 
 the prophets. I am not come to destroy 
 
MARRIAGE AND DIVORCE 113 
 
 but to fulfil/ That the law of Moses, which 
 He came to fulfil, permitted divorce at least 
 for adultery or fornication. That when 
 Christ said that for the hardness of men's 
 hearts Moses had permitted them to put 
 away their wives, He could not have meant 
 that Moses had allowed men to do what was 
 in itself sinful, and the proper inference 
 must be that Moses had admitted divorce 
 as a necessity for ordinary human nature 
 living in the world, though for truly spiritual 
 persons it would be unnecessary. This con- 
 clusion leads to and accords with the view 
 that Christ, in dealing with this question, 
 was directing His words to the Pharisees, 
 whose conventional, literal and legal attitude 
 of mind was so inimical to anything spiritual 
 and essentially righteous. In doing this 
 Christ is made to speak with unusual preci- 
 sion to enforce His point, but it is doing 
 violence to the passage to suppose that in 
 
H4 MARRIAGE AND DIVORCE 
 
 contradiction to everything else which He 
 ever said or did He intended by these words 
 to create a new civil law which was to be for 
 ever binding upon His followers. It would 
 be a matter of wonder that He intended to 
 do anything of the kind, and so it is not 
 surprising that the early fathers and the 
 Church for many centuries interpreted the 
 words as a counsel of perfection similar to 
 those contained in the Sermon on the Mount. 
 The spirit of love which should make us love 
 our enemies, or the spirit of charity which 
 should make us give away our cloaks and 
 coats to those who ask for them, would be 
 travestied and rendered ridiculous by literal 
 interpretation. In the same way it is a 
 travesty of divine and spiritual union to 
 insist upon two persons living together who 
 cannot do so without destruction of any true 
 sense of morality. It would be just as wise 
 to forbid savings banks as sinful because 
 
MARRIAGE AND DIVORCE 115 
 
 Christ said, ' Ye shall take no thought for 
 the morrow/ But, apart from this reason- 
 able view of Christ's intention in using the 
 words relied upon, there is a way of reading 
 the words themselves which prevents an 
 impracticable and dangerous conclusion. 
 
 ' Whom God hath joined together ' is a 
 phrase of very different meaning according 
 as it is understood in a deeply spiritual 
 sense, or in the literal sense of being married 
 in church by a priest. No right-minded 
 person would quarrel with a prohibition to 
 separate a husband and wife who were 
 spiritually united, because it could not con- 
 ceivably be done with their consent, and 
 the days of arbitrary conduct towards 
 married persons have passed away. But 
 when a man and woman are united in a 
 church, who have no spiritual communion, 
 but have agreed to marry for some unworthy 
 or frivolous motive, few will be so bold as 
 
 I 2 
 
n6 MARRIAGE AND DIVORCE 
 
 to assert that God has joined them together. 
 Many indeed will think that religion suffers 
 serious loss by its frequent association with 
 marriages which are scandals before they have 
 been broken. But where one of the parties 
 is innocent of evil, and has been trapped or 
 coerced into a marriage which is fraught 
 with misery and moral degradation, not only 
 would pity suggest that the tie should be 
 legally broken, but reason would compel 
 the conviction that God was not the author 
 of such a union. There is yet another 
 consideration which makes for a humane and 
 reasonable interpretation. Christ is reported 
 to have said in answer to the remonstrances 
 of His disciples that divorce is not permissible 
 ' except for fornication/ That again is a 
 phrase of deep spiritual significance, or it 
 may be understood in the vulgar and literal 
 sense of the word 'fornication/ It seems 
 impossible to believe that we should be able 
 
MARRIAGE AND DIVORCE 117 
 
 to read into it more spirituality than Christ 
 Himself, but if that is the case we must 
 believe that by fornication was intended any 
 sexual intercourse which was not based upon 
 true affection of the heart. Now there can 
 be no doubt whatever that such intercourse 
 is possible in every loveless marriage, and 
 is absolutely certain in every marriage which 
 has in fact been broken in every particular. 
 If that is true, then the Author of the Christian 
 religion did allow divorce as a possible means 
 of raising the standard of morality in marriage 
 to the highest point reached by mankind, 
 and this interpretation would accord with the 
 depth and breadth and liberty of the Gospel 
 in every other direction. Perhaps there is 
 yet another means of meeting the difficulties 
 raised in the minds of churchmen, by a 
 strict interpretation of the word 'solemnisa- 
 tion.' The solemnisation of marriage in the 
 minds of some people assumes that a marriage 
 
n8 MARRIAGE AND DIVORCE 
 
 has been made when two persons have 
 plighted their troth to each other based 
 upon a true communion of heart and soul, and 
 that the solemnisation is not the making, 
 but the blessing and confirming of what has 
 already been made between the parties. 
 This view, which seems a lofty as well as a 
 reasonable one, would point to marriage 
 being recognised as a civil contract to begin 
 with, and an opportunity being given to all 
 who desire it conscientiously to obtain the 
 blessing and confirmation of their particular 
 Church afterwards. It seems to be inviting 
 disaster to give religious sanction to worldly 
 and impious marriages without any warranty 
 for supposing that the parties have any 
 religious feeling in the matter, as it is unchris- 
 tian in the highest degree to refuse the 
 blessing and consolation of religion to an 
 innocent man or woman who desires it, simply 
 because he or she has been first released 
 
MARRIAGE AND DIVORCE 119 
 
 from an impossible or morally degrading 
 marriage. 
 
 Too much account is made in these matters 
 of what is called ' the world's opinion/ for 
 ' the world/ as Balzac said, ' gives the lie to 
 the law alike in its rejoicings, in its habits, 
 and in its pleasures, and is severer than either 
 the Code or the Church ; the world punishes 
 a blunder after encouraging hypocrisy/ 
 
 (2) THE CHILDREN 
 
 ' Children tell in the highway what they hear by the 
 fireside/ Portuguese Proverb. 
 
 The second argument for indissolubility 
 is that a broken marriage must be fatal to 
 the interests of the children and that there 
 is no place like home. 1 This argument is 
 
 1 I remember the case of a poor woman who came to 
 my court for help because her drunken husband had 
 beaten her and turned her out of doors. I sent the Court 
 Missionary to see if he could do any good. He found 
 
120 MARRIAGE AND DIVORCE 
 
 frankly utilitarian and its force must depend 
 upon the advantage to children of living 
 with parents who have ceased to be husband 
 and wife except in name, as compared with 
 possible arrangements for their welfare when 
 the parents have been legally as well as 
 practically parted the one from the other. 
 It cannot be doubtful that an atmosphere of 
 constant bickering and contention is the 
 worst possible for a child to be brought up 
 in, seeing that children have more need of 
 models than of critics. To suppose that no 
 commendable alternative can be suggested 
 betrays a remarkable want of faith in human 
 nature. The law which is man-made has not 
 yet shown any proper regard for the rights of 
 a mother under any circumstances. She is 
 the parent who has submitted to suffering 
 
 the place deserted by the husband, and everything in the 
 house broken except a framed text which was hanging on 
 one of the walls. The words of the text were : ' There is 
 no place like home/ 
 
MARRIAGE AND DIVORCE 121 
 
 and the risk of life in the birth of the child, 
 and it is upon her constant care amounting 
 often to devoted sacrifice that the child 
 depends during all the years of infancy; 
 but in the eye of the law she is not a parent 
 at all if the father is alive and has been 
 guilty of no misconduct. He remains sole 
 guardian of all children born in marriage, 
 and alone has power over them. He alone 
 has the right to determine the religion, the 
 education and the careers of his children, 
 whether they be boys or girls. He may 
 send them abroad to be educated or to earn 
 their living against the wishes of the mother. 
 When ' a parent ' has a right to claim exemp- 
 tion under the Vaccination Act magistrates 
 have definitely refused to recognise the mother 
 as a parent if the father is alive. It is 
 true that by the Guardianship of Infants 
 Act, 1886, some modification has been made, 
 in that after her husband's death a woman 
 
122 MARRIAGE AND DIVORCE 
 
 may be sole guardian of her children or 
 guardian in conjunction with another ap- 
 pointed by the husband; and by section 5 
 the mother of any infant may apply to the 
 Court for an order respecting ' the custody of 
 such infant, and the right of access thereto 
 of either parent, having regard to the welfare 
 of the infant, and to the conduct of the 
 parents, and to the wishes as w r ell of the mother 
 as of the father/ This provision is of the 
 highest importance, but it is hardly necessary 
 to point out that only comparatively rich 
 women could avail themselves of it, or such 
 women as come before the Court in a matri- 
 monial suit. I know myself of a case where 
 a Protestant man, who married a Protestant 
 woman, subsequently became converted to 
 Reman Catholicism. Several children were 
 born of the marriage, and every one of them 
 soon after birth was taken by the father 
 to be baptised in the Roman Catholic faith, 
 
MARRIAGE AND DIVORCE 123 
 
 not only without the consent, but against 
 the earnest wish of the mother, whose own 
 convictions remained unchanged. The law 
 gives no redress to the wife in such a case 
 though she gave herself in marriage (or as 
 the Church service has it was ' given in 
 marriage ' ) upon the implied understanding 
 that as her marriage was a Protestant one, 
 her children would certainly be Protestant 
 too. There is a common but erroneous 
 impression that the father has the right to 
 determine the upbringing of the sons, and 
 the mother that of the daughters. This 
 may be done by agreement, but by law the 
 mother has no such right. In a court of 
 summary jurisdiction when a child is ordered 
 to be sent to an industrial school or a refor- 
 matory, the magistrate is bound to select the 
 institution according to the religion of the 
 father, unless the father expresses a wish 
 to the contrary. 
 
124 MARRIAGE AND DIVORCE 
 
 The curious and significant fact is that 
 when the parties to a marriage are con- 
 strained by their differences to appeal to 
 the law, a more natural and reasonable 
 condition of things is at once established. 
 The Court is made arbiter in the dispute 
 and is given absolute discretion to decide 
 all questions of custody, upbringing and 
 access, and considers first the interests of 
 the children, and, secondly, the interests 
 of the innocent party to the suit. This is 
 provided for by the Matrimonial Causes 
 Act, 1857, s. 35; the Matrimonial Causes 
 Act, 1859, s - 4 > the Matrimonial Causes Act, 
 1884, s. 6 ; and the Guardianship of Infants 
 Act, 1886, s. 7 ; as well as by the Summary 
 Jurisdiction (Married Women) Act, 1895. 
 Every case is decided according to its own 
 circumstances without regard to who has 
 the right to the custody at Common Law. 
 This method of dealing with matrimonial 
 
MARRIAGE AND DIVORCE 125 
 
 disputes would leave nothing to be desired, 
 if the Court had equal discretion to vary 
 the settlements in all cases. Unfortunately 
 the right of variation is confined to cases 
 where the English Court has pronounced a 
 final decree of divorce, or where a judicial 
 separation is granted for the wife's adultery. 
 Sir George Lewis, whose experience in such 
 cases is unrivalled, declares that in his 
 opinion the law's attitude to women on this 
 matter is nothing short of an outrage. He 
 says : ' If a father has settled thirty or forty 
 thousand pounds upon his daughter, or 
 she has a fortune of her own upon the usual 
 terms giving a second life interest to the 
 husband, and then the capital among the 
 children ; if she applies to the Divorce Court 
 to take away the second life interest from 
 the husband, the Courts say : " We have no 
 power to do it. If you had committed 
 adultery we could do it even if a judicial 
 
126 MARRIAGE AND DIVORCE 
 
 separation only was asked for. But as 
 your husband has committed adultery and 
 a judicial separation is granted against him 
 we have no power to do it." Then this 
 lady says, "But I have children. If I die, 
 my husband will enjoy this income and 
 spend it with his mistress, and my children 
 may be in want." The Courts reply, " We 
 cannot help you." And if she has no children 
 when she dies, the husband, who has brought 
 all this misery and degradation and out- 
 rage upon her, receives the capital sum 
 which her father has settled on her on her 
 marriage unless special provision is made to 
 the contrary/ Sir George's remarks are 
 based upon a case which came within his 
 own experience. 
 
 It is difficult to exaggerate the importance 
 of just laws regulating the economic position 
 of women during marriage, because with- 
 out some command of money the right to 
 
MARRIAGE AND DIVORCE 127 
 
 share in the control and upbringing of the 
 children may be purely nominal. 
 
 In my experience I have often heard 
 separated women say that they had never 
 known what it was to enjoy their children 
 until they received a definite sum from 
 their husbands by order of the Court, and 
 could spend it upon their children without 
 being beaten for it. 
 
 When Courts have been established for 
 the relief of the poor as well as the rich, it 
 will be desirable that in all cases the magis- 
 trate or judge shall have absolute discre- 
 tion to decide what is best for the children 
 having regard to all the circumstances of 
 each case, economical as well as moral and 
 spiritual. 
 
 It will be found more often than is 
 commonly supposed that a mother who 
 has been guilty of misconduct has been 
 more sinned against than sinning, and that 
 
128 MARRIAGE AND DIVORCE 
 
 her devotion to her children is such that, 
 unless she may be truly described as immoral 
 in character, or persists in her misconduct, 
 it would be cruel to deprive the children of 
 her care, at any rate during the years of 
 infancy. I mention this because a man's 
 misconduct is too often so little regarded, 
 whereas a woman's is supposed to reasonably 
 deprive her of all human rights, whatever 
 the result may be to the children. The 
 absence of any remedy for a husband's mis- 
 conduct in the Summary Jurisdiction 
 (Married Women) Act affords the best 
 possible illustration of this. 
 
 Let it be remembered, in conclusion, that, 
 in the overwhelming majority of marriages, 
 the natural co-operation of husband and 
 wife leads to the proper upbringing of the 
 children without dispute. We are only con- 
 cerned with the exceptional cases where 
 disputes have arisen which cannot be 
 
MARRIAGE AND DIVORCE 129 
 
 adjusted by the parties. In those cases my 
 contention is that the removal of the children 
 from an atmosphere of misery to one of 
 reasonable happiness, whether it be with 
 the innocent party, as is generally the case, 
 or with a third party, is distinctly conducive 
 to their morality and general well-being; 
 and the decision of an impartial arbiter in 
 such matters is much more likely to be 
 satisfactory than the conclusion of parents 
 who cannot avoid conducting the discussion 
 in a spirit of avowed hostility. 
 
 (3) THE INCREASED DIVORCE RATE 
 
 ' Freedom and slavery, the one is the name of virtue, 
 the other of vice, and both are acts of the will.' EPICTETUS. 
 
 ' Freedom is only granted us that obedience may be 
 more perfect/ RUSKIN.- 
 
 The third argument for indissolubility is 
 based upon the fact that the divorce rate, 
 all the world over, shows a tendency to 
 
130 MARRIAGE AND DIVORCE 
 
 increase, and the only way to check it is 
 to make the marriage tie unbreakable. This 
 contention assumes that divorce is an evil 
 because it is made known, and that im- 
 morality, which is caused by the absence of 
 divorce, may be ignored because it is con- 
 cealed. Such a view is obviously a shallow 
 one, but, unfortunately, it cannot be main- 
 tained without grave danger to national 
 character. This has been pointed out before 
 in dealing with the statistics in Roman 
 Catholic countries, and the devices which 
 are resorted to by the Roman Catholic 
 Church to obtain the advantages of divorce 
 without appearing to admit the principle. 
 What has not been sufficiently insisted upon 
 is that the multiplication of divorces is 
 due, not so much to increased laxity ot 
 morals, as to the many causes which in com- 
 bination represent the modern spirit, and 
 are essential to the progress of the world 
 
MARRIAGE AND DIVORCE 131 
 
 towards a higher standard of justice, in- 
 dividual liberty, and happiness. This matter 
 is dealt with at length by Professor Lichten- 
 berger, to whose book on Divorce I would 
 
 refer my readers. I must content myself 
 
 f*~~~ m " ' * "t 
 with the shortest possible summary.^ The c 
 
 rise of the divorce rate is due to the problem 
 of adjustment to new conditions and new 
 ideas. The hardships of life in the past 
 afforded a discipline which is considerably 
 lessened by the thousand and one means 
 which have been discovered to make life 
 easier, and men are driven much more than 
 they used to be to make discipline for them- 
 selves. The higher standard of living which 
 is desirable for all is not reached without 
 a competition for display which presses 
 hardly upon family resources, and is often 
 a cause of friction. We have passed from 
 an age of comparative simplicity to one of 
 great complication, and dwellers in the 
 
 K 2 
 
132 MARRIAGE AND DIVORCE 
 
 country tend more and more to congregate 
 in cities. The old family which used to be 
 an economic unity has disappeared, and 
 not only is there an absence of necessity 
 for the members to live together, but there 
 is, on the contrary, in nearly every case a 
 necessity to part. This necessity applies 
 increasingly to girls as well as to boys, and 
 to a smaller extent to wives as well as to 
 husbands. Children are no longer educated 
 or trained at home. Even religious instruc- 
 tion is found for them at a Sunday school. 
 The home, therefore, is maintained more 
 for a comfort than a necessity, and if it 
 fails to provide what it is kept for, there 
 is a greater temptation to leave it. The 
 greater number of occupations open to 
 women, the removal of prejudice against 
 female employment, as well as the economic 
 pressure which compels women to leave 
 home, tends to their economic emancipation. 
 
MARRIAGE AND DIVORCE 133 
 
 This change is eminently desirable. Human 
 beings are the only animal species in which 
 the female depends upon the male for food, 
 the only animal species in which the sex 
 relation is also an economic relation, and 
 is maintained without any natural period 
 of repose. It is due to this dependence 
 that many women look upon marriage as 
 an economic vocation. They barter their 
 sex capital to a man in exchange for life 
 support, and it is notably due to this class 
 that we have so many 'divorce scandals in 
 high life/ Such divorces must not be con- 
 founded with those which are rendered 
 possible by economic independence and arise 
 from a desire for better things. This eman- 
 cipation is, for the most part, only potential 
 at present, but the improved status of 
 women is a reality. Women are ceasing 
 to be the chattels of fathers and husbands ; 
 their increased intellectual training and 
 
134 MARRIAGE AND DIVORCE 
 
 rights of property nave enlarged their freedom, 
 and with the growth of freedom the patri- 
 archal possessory and purchase systems of 
 marriage must cease. Women are reach- 
 ing a greater sense of their own personality, 
 which is inconsistent with an unworthy 
 bondage either of thought or of action. 
 Many wives still regard it as a sacred obliga- 
 tion to endure a species of martyrdom in 
 marriage out of reverence for the institu- 
 tion, or in the supposed interests of the 
 children. But an increasing number are 
 coming instinctively to feel that a mode of 
 living cannot be destructive of life and per- 
 sonality, and at the same time in accordance 
 with the highest morality. 
 
 Apart from women the tendency of social 
 progress is towards greater respect for the 
 individual. In the American Declaration of 
 Independence it is laid down that institu- 
 tions exist to promote ' life liberty and the 
 
MARRIAGE AND DIVORCE 135 
 
 pursuit of happiness/ and it is not com- 
 patible with ideals of justice and freedom 
 that the institution should be held more 
 sacred than the individual. It is for this 
 reason and due to this spirit that fewer 
 men and women will brook infidelity to the 
 marriage tie, and that the amount of cruelty 
 and brutality which women will endure is 
 rapidly diminishing. Popular education has 
 made the evil conditions of life more under- 
 stood, and proportionately fostered the spirit 
 of revolt. In the sphere of religion character 
 is apt to be more valued than creed, and 
 service than orthodoxy. Morality is less 
 transcendental and more obviously conducive 
 to social happiness. For this reason marriage 
 is more and more thought of as made for 
 men and women rather than men and 
 women for marriage. A dual standard of 
 morality is no longer admissible in practical 
 ethics. The existence and maintenance of 
 
136 MARRIAGE AND DIVORCE 
 
 such an idea was largely due to the social 
 inferiority of women which has been spoken 
 of above. As Professor Lichtenberger says : 
 1 Under penalty of starvation for one class 
 and fear of a less luxurious support in 
 idleness for another, wives have often sub- 
 mitted to a double standard of morals re- 
 pugnant to all their finer sensibilities and 
 sense of justice.' With a truer sense of 
 equality there arises a higher ideal of domestic 
 happiness based upon a real partnership 
 for mutual comfort and support, and a 
 nobler idea of sex relations. A marriage 
 for pecuniary or social advantage becomes 
 increasingly recognised as a form of legalised 
 prostitution, and coercion by Church or 
 State, which compels one person to live with 
 another in repugnant relations, ' does violence 
 to all the higher ethical instincts of the soul/ 
 Popular moral sentiment more than ever 
 regards the ideal marriage as the supreme 
 
MARRIAGE AND DIVORCE 137 
 
 method of realising the perpetuity and educa- 
 tion of the race. But it recognises worse 
 evils than divorce, and refuses to purchase 
 respect for the conventional marriage tie 
 by the crushing of the human spirit. 
 
 In addition to all this growth of freedom 
 and individuality it must be remembered 
 that law, which used to be the privilege of 
 the rich and the educated, has been or is 
 being brought within reach of the poor and 
 ignorant. There is nothing to be wondered 
 at that divorces have shown a tendency to 
 increase under these circumstances. How- 
 ever regrettable from one point of view there 
 is hope in it from another. Herbert Spencer, 
 forecasting the trend of public opinion in 
 this matter many years ago, concludes as 
 follows : ' The changes which may further 
 facilitate divorce under certain conditions 
 are changes which will make those condi- 
 tions more and more rare/ It is certain 
 
138 MARRIAGE AND DIVORCE 
 
 that marriage contracted upon the bases 
 of mutual attraction and companionship, of 
 reciprocal rights and privileges, and of an 
 equal standard of morals is far more likely 
 to survive than the coercive marriage with 
 its inequality, economic dependence, and 
 dual standard of morals. To quote again 
 from Herbert Spencer : ' Marriage will be 
 entered into by choice and maintained by 
 mutual preference/ As greater stress is laid 
 upon the real than the artificial bond, 
 theoretical monogamy will become actual 
 monogamy, and the union will be ' unto 
 death/ The ultimate effect of greater 
 freedom of divorce should be not more but 
 fewer divorces. 
 
CHAPTER IV 
 
 CONCLUSIONS 
 
 ' Justice consists mainly in the granting to every 
 human being due aid in the development of such faculties 
 as he or she possesses for action and enjoyment/ RUSKIN. 
 
 THE conclusions which I would ask my 
 readers to draw from the foregoing study 
 of marriage under modern conditions are 
 that considerable reforms are necessary 
 in the Divorce Law in the interest of 
 national morality, and that they may 
 be reasonably accepted as not impairing, 
 but rather strengthening the sanctity of 
 marriage. 
 
 Firstly, as soon as divorce is recognised 
 as a release for innocent persons from a 
 
 demoralising union, instead of as merely 
 
 139 
 
140 MARRIAGE AND DIVORCE 
 
 a cause or encouragement of vice, it 
 will be absolutely impossible to maintain 
 the existing distinction between rich and 
 poor. The relief of divorce, and the hope 
 thereby given of a new life being started 
 under natural and moral conditions, must 
 be brought within reach of all without 
 distinction. To refuse this for fear of 
 certain persons abusing the privilege 
 would be to calm our own fears at the 
 cost of grave and obvious injustice to 
 other persons. 
 
 Secondly, when the proposition has been 
 accepted that no true system of ethics can 
 admit distinction of sex, the dual standard 
 of morality will go by the board. There 
 must be equal rights for men and women 
 in the matter of divorce, as well as of 
 separation, in so far as the latter remedy 
 is maintained for matrimonial evils. 
 
 Thirdly, when the position of legally 
 
MARRIAGE AND DIVORCE 141 
 
 separated persons has been examined and 
 appreciated, it cannot remain unchanged, 
 if any proper regard is to be had for 
 national morality. Everything points to the 
 advisability, if not the necessity, of legal 
 separation being convertible, at some time 
 more or less prolonged, into divorce, because 
 it must be remembered that separations, 
 whether legal or voluntary, are merely 
 divorces without the power of remarriage. 
 
 Fourthly, I would add to the existing 
 causes of legal separation, with possibility 
 of divorce, hopeless insanity, persistent in- 
 ebriety, and constantly recurrent criminal- 
 ity, the hopelessness in each case being 
 determined by lapse of a fixed term as 
 well as by expert opinion. I know what 
 will be said about the ennobling words 
 ' for better or worse/ and about the 
 untrustworthy opinion of experts ; my 
 answer is that nobody by the law will be 
 
142 MARRIAGE AND DIVORCE 
 
 compelled or even constrained to apply 
 for a divorce. The measure of our 
 sufferings is in ourselves, and those who 
 profess themselves capable of understand- 
 ing and bearing the sorrows of others 
 would fain get the credit of martyrdom 
 by proxy. They are of small or no 
 account to practical persons. I can only 
 say from experience that I have known 
 many innocent girls married to men 
 who have turned out to be habitual 
 criminals, who wreck their homes, and ruin 
 their wives whenever they return from 
 prison ; and I have known many men in 
 the prime of life deprived of their wives 
 owing to insanity, and crippled by weekly 
 payments for their maintenance during 
 twenty or thirty years. These cases have 
 been brought before me by those who 
 sought in vain for a remedy ; there was no 
 question whatever of love to be encouraged 
 
MARRIAGE AND DIVORCE 143 
 
 or hoped for. Whatever love there 
 originally was had died early, never to 
 rise again, and it seems to me nothing 
 short of cruelty that Society, which owes 
 us happiness as well as security, should 
 leave these unfortunate people in hopeless 
 misery without a chance of escape. 
 
 It will be contended that with so many 
 avenues of escape from a legal bond the 
 sanctity of marriage will disappear. That 
 contention presumes a complete want of 
 faith in human nature, and is contra- 
 dicted by experience. Those who object 
 to the belief that general and particular 
 happiness should be the aim of all legis- 
 lation forget that human beings have 
 faculties more elevated than the animal 
 appetites, and that, as Stuart Mill has ob- 
 served, when once made conscious of them, 
 they do not regard anything as happiness 
 which does not include their gratification. 
 
144 MARRIAGE AND DIVORCE 
 
 Divorces are not increased by a multi- 
 plication of causes except in countries 
 where the law has been like our own of 
 a prohibitive character, and there are 
 remarkable examples of no divorces being 
 applied for where the freedom for both 
 sexes is complete. It is important to 
 move slowly to prevent misunderstanding, 
 and nobody can imagine serious abuse of 
 such causes as insanity, persistent criminal- 
 ity, or hopeless inebriety. There is more 
 room for discussion upon the subjects of 
 wilful desertion and cruelty. 
 
 Desertion and refusal of cohabitation 
 are in the same category as causes which 
 make the primary purpose of marriage 
 impossible, such as have been held by the 
 Church to justify annulment, namely im- 
 potence and affinity within prohibited 
 degrees. When malicious and prolonged, 
 so that reconciliation may neither be 
 
MARRIAGE AND DIVORCE 145 
 
 expected nor desired, it is inhuman to refuse 
 divorce with right of remarriage to the 
 deserted party, and as such right must be 
 reciprocal, the guilty person would also 
 be enabled to marry, but the Church 
 might reasonably refuse to the guilty the 
 consolation of a religious service for a 
 second marriage. In this case divorce 
 should be possible for the deserted party 
 in two years. Moreover, I think it will 
 be found, on reflexion, impossible to stop 
 short of the position taken up in Germany, 
 that persons who agree to separate shall 
 not be allowed to do so permanently, but 
 that either party after a period of five 
 years may apply to the Court to make 
 the separation a divorce. For those who 
 consider such liberty too wide I would 
 suggest that separation would not lightly 
 be agreed to by both parties, especially 
 if there were children of the marriage, and 
 
146 MARRIAGE AND DIVORCE 
 
 that after the separation had been pro- 
 longed for five years, it may reasonably be 
 assumed that all possible means of effect- 
 ing a reconciliation would have been 
 exhausted. Agreement to separate is 
 something like collusion in divorce trials. 
 
 It is of much interest to note that in 
 Norway, where separations are granted on 
 the mutual request of both parties and 
 where such separations may become abso- 
 lute divorces after three years, either on the 
 request of both parties, or if circumstances 
 warrant on the request of one party only, 
 divorce is comparatively rare. In 1900 
 the annual average of divorces taken for a 
 period of five years was 129, or six divorces 
 to each 100,000 of the population. 
 
 t The cause of cruelty also leads to 
 serious misgiving in those who are reluctant 
 to consider divorce a lesser evil than an 
 impossible marriage; but it is not arguable 
 
MARRIAGE AND DIVORCE 147 
 
 by experienced persons that where cruelty 
 has been established the parties to a 
 marriage should be compelled to live 
 together. In most cases there is physical 
 danger to health if not to life involved 
 in the process, and the only real difficulty 
 is to know how far the definition of cruelty 
 should be extended. It is strangely 
 material to limit it to physical causes when 
 everybody knows that moral causes may 
 quite as readily affect people's health as 
 physical causes, and it is always a question 
 of degree. For example, in England we 
 are too ready to meet the complaint of 
 : gross abuse ' with the cheap suggestion 
 that ' bad words break no bones, and wise 
 people should ignore them/ It is instruc- 
 tive to observe how frequently, in ancient 
 and modern codes of other countries, gross 
 or constant abuse is made a cause for 
 divorce. Let those who are inclined to 
 
148 MARRIAGE AND DIVORCE 
 
 demur consider what their lives would be 
 like if they had to submit to coarse and 
 blasphemous abuse night after night in 
 front of their children. I think the safe- 
 guard of temporary separation, with 
 periodical applications to the Court during 
 a period of two years, is a reasonable one, 
 and would absolutely prevent hasty, frivo- 
 lous or fictitious allegations being made an 
 excuse for seeking divorce. 
 
 |/ Neglect to maintain, which is another 
 cause for separation, is also an elastic 
 term. It may, and generally does, mean 
 amongst the working classes neglect to 
 provide sufficient for feeding the wife and 
 children; but what misery may be caused 
 by conduct which falls far short of that! 
 In Germany the law compels a man to 
 keep his wife and children according to his 
 means and position ; in England it is 
 only necessarv to keep them out of the 
 
MARRIAGE AND DIVORCE 149 
 
 workhouse. The first is humane, and the 
 second brutal. If a woman of the work- 
 ing classes is made to pay the rent, feed 
 and clothe the husband and children out 
 of an insufficient proportion of a man's 
 wages, her life is a perpetual misery, and 
 when it reaches the breaking-point, it 
 seems most reasonable that, without 
 actually leaving his house, as she is now 
 compelled to do, she should be entitled to 
 apply to the Court for a separation, which 
 should last so long as the husband refused 
 to comply with a reasonable demand, and 
 might eventually be converted into a 
 divorce. How many homes amongst those 
 who are better off are made positively 
 wretched by the husband compelling the 
 wife to bear all the expenses of the home 
 and the children, while he keeps for his 
 own pleasures, whatever his tastes may 
 happen to be, a handsome superfluity ! 
 
150 MARRIAGE AND DIVORCE 
 
 Somewhat analogous to an agreement 
 to separate is collusion between parties to a 
 divorce. There seems to be something ridi- 
 culous as well as painful in refusing to grant 
 divorce to a worthy person simply because 
 the other party has agreed not to defend 
 the suit, and from public policy point of 
 view there can be no good object in keeping 
 two sinful persons together when they wish 
 to part in such a way as to enable them to 
 live honestly and morally with another com- 
 panion, if that should be their desire. In 
 Scotland divorce is not prevented by collusion 
 or recrimination which establishes guilt in 
 both parties ; such a condition of things 
 : only affects the financial arrangements made 
 
 | by the decree. This appears to be most 
 
 ( 
 reasonable, because, in practice, nobody would 
 
 seriously contend that the law ought to insist on 
 cohabitation by persons who have broken the 
 marriage tie and unequivocally desire to have it 
 
MARRIAGE AND DIVORCE 151 
 
 dissolved. Divorce under such circumstances 
 might reasonably be postponed for two years 
 instead of the present term of six months. 
 
 The office of King's Proctor might, with 
 great advantage, be abolished if collusion is 
 not to be prohibitive and prolonged separa- 
 tions by consent, or by necessity, are allowed 
 to be converted into divorce. 
 
 What, it will be said, is the practical 
 difference between such facilities and ' divorce 
 at the will of either party ' ? There is no 
 use in denying that nothing can ever prevent 
 people divorcing each other in fact if they are 
 so minded, but it is reasonable to make such 
 a step as serious and public as possible to 
 ensure bona fides ; and it is necessary to have 
 the intervention of the Court to protect the 
 interests of the family and prevent the 
 innocent party from suffering more than is 
 necessary, and the guilty party from obtain- 
 ing any advantage without suffering for it. 
 
i 
 
 152 MARRIAGE AND DIVORCE 
 
 The publication of proceedings is a matter 
 
 / 
 
 (for separate consideration, and should be 
 under the complete control of the Court. 
 At present it often punishes perfectly innocent 
 people, and almost invariably does grave 
 injury to the general public. I would have 
 the decree compulsorily published and 
 registered, and the distinction clearly marked 
 between guilty and innocent parties, but I 
 would leave to the discretion of the Court 
 the nature and extent of the reports for the 
 reading public. Half the misunderstanding 
 about divorce is due to the disgust caused 
 by the publication of offensive details which 
 chain the imagination, so that it overlooks 
 or ignores the suffering which has caused the 
 proceedings to be taken. Further than this, 
 the mischievous publication of immoral details 
 in the lives of the more educated gives a 
 wholly exaggerated impression of general 
 immorality, and increases the disregard of 
 
MARRIAGE AND DIVORCE 153 
 
 the marriage tie which is naturally engendered 
 in the working classes by the refusal of the 
 State to give them adequate relief. 
 
 I wish to make it abundantly clear that, 
 while I sympathise most sincerely with those 
 who wish to see divorces diminished in 
 quantity, I consider that the only true and 
 effective method is to concentrate the attack 
 upon the causes rather than the results. 
 These causes are to be found in marriages 
 which have been undertaken without proper 
 consideration for unworthy motives, such 
 as money, or rank, or because of previous 
 immorality, and much good may be done 
 by greater strictness as to age and the 
 consent of both parents, together with due 
 regard for health and something in the 
 nature of savings, or other means to justify 
 so important a step. 
 
 The Church ought, as far as possible, 
 to be dissociated from scandalous marriages ; 
 
154 MARRIAGE AND DIVORCE 
 
 and a considerable step towards this end 
 would be taken by making it compulsory for 
 all marriages to be first concluded before 
 a registrar, leaving the religious service for 
 those only who desire it, and who are con- 
 sidered to be in sufficient communion with the 
 Church or other religious body to deserve it. 
 
 Marriage is a civil contract in every case, 
 but it can only be a sacrament to those who 
 believe it so. The suggested change would 
 merely be reverting to the old practice before 
 the Church insisted on making marriage an 
 ecclesiastical matter, namely, a civil ceremony 
 in the porch of a church, and a subsequent 
 blessing inside the church. 
 
 If the Church service could be so changed 
 
 as to be purged of moral ideas which are 
 
 unsuited to an enlightened age, it would 
 
 command the respect and retain the affection 
 
 \ of the people ; but it would still require 
 
 / protection from abuse of its privileges, which 
 
MARRIAGE AND DIVORCE 155 
 
 leads to much scandal and loss of prestige 
 for religion in general. 
 
 Protection of marriage is also to be sought 
 in the change of law with regard to illegiti- 
 mate children, and the curtailment of testa- 
 mentary disposition. A man will be more 
 careful of breaking the marriage ties if he 
 is made equally responsible with the mother 
 for illegitimate children, and if, whatever 
 happens, he cannot deprive his lawful wife 
 and children of a share of his property suit- 
 able to their condition and his means. 
 
 The courts in which divorce should be 
 
 obtainable must be sufficient in number to 
 
 be reasonably accessible to everybody, and 
 
 | the cost of proceedings must be small enough 
 
 / to make it possible for poor men or women 
 
 to bear it. This should not be a negligible 
 
 v quantity, but sufficiently heavy to make 
 
 anybody hesitate a considerable time before 
 
 taking proceedings. It ought not to cost more 
 
156 MARRIAGE AND DIVORCE 
 
 than 10 for persons whose income does not 
 exceed 100, or 5 for those whose income 
 does not exceed 50 a year. The Court 
 should, as far as possible, be a special 
 one for matrimonial causes, but if it must, 
 for economic reasons, be associated with 
 other matters, it would, I think, be very 
 desirable that those matters should be 
 criminal or quasi-criminal rather than civil. 
 There should be something deterrent and 
 disciplinary in the Court itself, and for this 
 reason I think a county court would be 
 less desirable than that of a recorder or 
 stipendiary magistrate, or than the assizes. 
 My reason for thinking that a magisterial 
 court would be the most suitable, is that the 
 machinery of those courts has been for some 
 time adapted to the reformation of persons 
 who have fallen into the criminal ranks, and 
 the whole scheme of release from the marriage 
 bonds is based upon the idea of possible 
 
MARRIAGE AND DIVORCE 157 
 
 reconciliation and reformation without per- 
 manently breaking the marriage tie, and, in 
 any case, reformation under new conditions 
 if the marriage is dissolved. For this pur- 
 pose probation officers will be required, and 
 the confidential and personal nature of magis- 
 terial proceedings is most suitable. Nothing 
 could be worse than that matrimonial offences 
 should be treated like breaches of ordinary 
 civil contracts, or that the causes should 
 escape careful and personal supervision, which 
 no judge could possibly give who is daily 
 dealing with other matters of a completely 
 different nature. 
 
 Trial by jury in matrimonial causes is 
 not desirable and should be permissive only ; 
 and to diminish the chances of injustice 
 such juries should be composed equally of 
 men and women. 
 
 If separations are granted for present 
 causes, or for others which may be added to 
 
158 MARRIAGE AND DIVORCE 
 
 them, I think each cause should be assigned 
 to an officer of the Court, whose duty it 
 should be to report upon the case from time 
 to time, and cause the parties to appear 
 before the Court once every three or six 
 months, according to order, for a period of 
 two years in the case of cruelty, desertion, 
 repeated imprisonment and neglect to main- 
 tain, of five years in the case of separation 
 by agreement, and of three years in the case 
 of insanity or inebriety. 
 
 Separations of this temporary nature, 
 with the possibility of divorce, may well be 
 regarded as a substitute for the old eccle- 
 siastical penances, and furnish a very neces- 
 sary sanction for the mutual performance 
 of marriage obligations by both husband 
 and wife. Divorces, on the other hand, may 
 be regarded as the only means of preventing 
 lifelong misery to many innocent persons, 
 and of maintaining as high a standard 
 
MARRIAGE AND DIVORCE 159 
 
 of morality in marriage as is considered 
 desirable for the unmarried. 
 
 The object of all changes must be the 
 strengthening of marriage obligations for 
 both husband and wife, and thereby in- 
 creasing both the sanctity of marriage and 
 the chances of human happiness for each 
 individual. It cannot be too frequently in- 
 sisted upon that proceedings for separation 
 or divorce will always be voluntary acts, 
 and that a large majority of mankind in 
 all classes have no desire or necessity to 
 seek release from the ties which they have 
 formed. Liberty, equality, and fraternity are 
 as necessary for human happiness in family 
 life as they are in national life, governed 
 by democratic ideas. To secure these bless- 
 ings for both sexes in marriage, as well as 
 in everything else, should be the aim of 
 legislation. The progress of the world has 
 been shown to be towards monogamy as 
 
160 MARRIAGE AND DIVORCE 
 
 the ideal form of marriage; but to make it 
 a reality men and women must be taught 
 by the law to find security for their happi- 
 ness in the maintenance after marriage cf 
 the same qualities and the same conduct 
 as they relied upon to secure the union 
 which they desired. 
 
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