* "Divorce and Divorce Legislation," by Theodore D. Woolsey, 2d Ed., p. 126.
And for this no, his first and last and best reason can be but this: "_Thus saith the Lord_."
As time goes on the wisdom of the church in absolutely forbidding divorce from the marriage bond grows more and more plain even to the many who deny to this prohibition a divine and authoritative sanction.
And nowhere is this more true than in our own country. Yet our experience of the evils of divorce is but the experience of every people that has cherished this monster.
Let us take but a hasty view of the consequences of divorce in ancient times. Turn only to pagan Greece and Rome, two peoples that practised divorce most extensively. In both we find divorce weakening their primitive virtue and making their latter corruption more corrupt. Among the Greeks morality declined as material civilization advanced. Divorce grew easy and common, and purity and peace were banished from the family circle. Among the Romans divorce was not common until the latter days of the Republic. Then the flood-gates of immorality were opened, and, with divorce made easy, came rushing in corruption of morals among both sexes and in every walk of life. "Passion, interest, or caprice," Gibbon, the historian, tells us, "suggested daily motives for the dissolution of marriage; a word, a sign, a message, a letter, the mandate of a freedman, declared the separation; the most tender of human connections was degraded to a transient society of profit or pleasure."* Each succeeding generation witnessed moral corruption more general, moral degradation more profound; men and women were no longer ashamed of licentiousness; until at length the nation that became mighty because built on a pure family fell when its corner-stone crumbled away in rottenness.
* "Decline and Fall of the Roman Empire," Milman's Ed., Vol.
III., p. 236.
Heedless of the lessons taught by history, modern nations, too, have made trial of divorce. In Europe, wherever the new gospel of marriage and divorce has had! notable influence, divorce has been legalized; and in due proportion to the extent of that influence causes for divorce have been multiplied, the bond of marriage more and more recklessly broken, and the obligations of that sacred state more and more shamelessly disregarded. In our own country the divorce evil has grown more rapidly than our growth and strengthened more rapidly than our strength. Mr. Carroll D. Wright, in a special report on the statistics of marriage and divorce made to Congress in February, 1889, places the number of divorces in the United States in 1867 at 9,937, and the number in 1886 at 25,535. These figures show an increase of the divorce evil much out of proportion to our increase in population. The knowledge that divorces can easily be procured encourages hasty marriages and equally hasty preparations. Legislators and judges in some States are encouraging inventive genius in the art of finding new causes for divorce. Frequently the most trivial and even ridiculous pretexts are recognized as sufficient for the rupture of the marriage bond; and in some States divorce can be obtained "without publicity," and even without the knowledge of the defendant--in such cases generally an innocent wife. Crime has sometimes been committed for the very purpose of bringing about a divorce, and cases are not rare in which plots have been laid to blacken the reputation of a virtuous spouse in order to obtain legal freedom for new nuptials. Sometimes, too, there is a collusion between the married parties to obtain divorce. One of them trumps up charges; the other does not oppose the suit; and judgment is entered for the plaintiff. Every daily newspaper tells us of divorces applied for or granted, and the public sense of decency is constantly being shocked by the disgusting recital of of divorce-court scandals.
We are filled with righteous indignation at Mormonism; we brand it as a national disgrace, and justly demand its suppression. Why? Because, forsooth, the Mormons are polygamists. Do we forget that there are two species of polygamy--simultaneous and successive? Mormons practise without legal recognition the first species; while among us the second species is indulged in, and with the sanction of law, by thousands in whose nostrils Mormonism is a stench and an abomination. The Christian press and pulpit of the land denounce the Mormons as "an adulterous generation," but too often deal very tenderly with Christian polygamists. Why? Is Christian polygamy less odious in the eyes of God than Mormon polygamy? Among us, *tis true, the one is looked upon as more respectable than the other. Yet we know that the Mormons as a class, care for their wives and children; while Christian polygamists but too often leave wretched wives to starve, slave, or sin, and leave miserable children a public charge. "O divorced and much-married Christian," says the polygamous dweller by Salt Lake, "pluck first the beam from thy own eye, and then shalt thou see to pluck the mote from the eye of thy much-married, but undivorced, Mormon brother." It follows logically from the Catholic doctrine of the unity and indissolubility of marriage, and the consequent prohibition of divorce from the marital bond, that no one, even though divorced _a vinculo_ by the civil power, can be allowed by the church to take another consort during the lifetime of the true wife or husband, and such connection the church can but hold as sinful. It is written: "Whosoever shall put away his wife and marry another committeth adultery against her. And if the wife shall put away her husband, and be married to another, she committeth adultery."*
* Mark, x., ii, 12.
Of course, I am well aware that upon the words of our Saviour as found in St. Matthew, Chap. xix., 9, many base the right of divorce from the marriage bond for adultery, with permission to remarry. But, as is well known, the Catholic Church, upon the concurrent testimony of the Evangelists Mark* and Luke,** and upon the teaching of St. Paul,***
interprets our Lord's words quoted by St. Matthew as simply permitting, on account of adultery, divorce from bed and board, with no right to either party to marry another.
But even if divorce _a vinculo_ were not forbidden by divine law, how inadequate a remedy would it be for the evils for which so many deem it a panacea. "Divorce _a vinculo_," as Dr. Brownson truly says, "logically involves divorce _ad libitum."_*** Now, what reason is there to suppose that parties divorced and remated will be happier in the new connection than in the old? As a matter of fact, many persons have been divorced a number of times. Sometimes, too, it happens that, after a period of separation, divorced parties repent of their folly, reunite, and are again divorced. Indeed, experience clearly proves that unhappiness among married people frequently does not arise so much from "mutual incompatibility" as from causes inherent in one or both of the parties--causes that would be likely to make a new union as wretched as the old one. There is wisdom in the pithy saying of-a recent writer: "Much ill comes, not because men and women are married, but because they are fools."***
* Mark, x., n, 12. Luke, xvi., 18. J I. Cor.,vii., 10, 11.
** Essay on "The Family--Christian and Pagan."
*** Prof. David Swing in Chicago Journal.
There are some who think that the absolute prohibition of divorce does not contribute to the purity of society, and are therefore of opinion that divorce with liberty to remarry does good in this regard. He who believes the matrimonial bond indissoluble, divorce a vinculo evil, and the connection resulting from it criminal, can only say: "Evil should not be done that good may come." But, after all, would even passing good come from this greater freedom? In a few exceptional cases--Yes: in the vast majority of cases--No. The trying of divorce as a safeguard of purity is an old experiment, and an unsuccessful one. In Rome adulteries increased as divorces were multiplied. After speaking of the facility and frequency of divorce among the Romans, Gibbon adds:
"A specious theory is confuted by this free and perfect experiment, which demonstrates that the liberty of divorce does not contribute to happiness and virtue. The facility of separation would destroy all mutual confidence, and inflame every trifling dispute. The minute difference between a husband and a stranger, which might so easily be removed, might still more easily be forgotten."*
How _apropos_ in this connection are the words of Professor Woolsey:
"Nothing is more startling than to pass from the first part of the eighteenth to this latter part of the nineteenth century, and to observe how law has changed and opinion has altered in regard to marriage, the great foundation of society, and to divorce; and how, almost pari passu, various offences against chastity, such as concubinage, prostitution, illegitimate births, abortion, disinclination to family life, have increased also--not, indeed, at the same pace everywhere, or all of them equally in all countries, yet have decidedly increased on the whole."!
Surely in few parts of the wide world is the truth of these strong words more evident than in those parts of our own country where loose divorce laws have long prevailed.
It should be noted that, while never allowing the dissolution of the marriage bond, the Catholic Church has always permitted, for grave causes and under certain conditions, a temporary or permanent "separation from bed and board."
* "Decline and Fall of the Roman Empire," Milman's Ed., Vol.
III., p. 236.
** "Divorce and Divorce Legislation," 2d Ed., p. 274.
The causes which, _positis ponendis_, justify such separation may be briefly given thus: mutual consent, adultery, and grave peril of soul or body.
It may be said that there are persons so unhappily mated and so constituted that for them no relief can come save from divorce _a vinculo_, with permission to remarry. I shall not linger here to point out to such the need of seeking from a higher than earthly power the grace to suffer and be strong. But for those whose reasoning on this subject is of the earth, earthy, I shall add some words of practical worldly wisdom from eminent jurists. In a note to his edition of Blackstone's "Commentaries," Mr. John Taylor Coleridge says:
"It is no less truly than beautifully said by Sir W. Scott, in the case of Evans v. Evans, that 'though in particular cases the repugnance of the law to dissolve the obligation of matrimonial cohabitation may operate with great severity upon individuals, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility.' When people understand that they must live together, except for a few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off: they become good husbands and good wives from the necessity of remaining husbands and wives: for necessity is a powerful master in teaching the duties which it imposes. If it were once understood that upon mutual disgust married persons might be legally separated, many couples who now pass through the world with mutual comfort, with attention to their common offspring, and to the moral order of civil society, might have been at this moment living in a state of mutual unkindness, in a state of estrangement from their common offspring, and in a state of the most licentious and unrestrained immorality. In this case, as in many other cases, the happiness of some individuals must be sacrificed to the greater and more general good."
The facility and frequency of divorce, and its lamentable consequences, are nowadays calling much attention to measures of "divorce reform."
"How can divorce reform be best secured?" it may be asked. Believing, as I do, that divorce is evil, I also believe that its "reformation"
and its death must be simultaneous. It should cease to be. Divorce as we know it began when marriage was removed from the domain of the church: divorce shall cease when the old order shall be restored. Will this ever come to pass? Perhaps so--after many days. Meanwhile, something might be done, something should be done, to lessen the evils of divorce. Our present divorce legislation must be presumed to be such as the majority of the people wish it. A first step, therefore, in the way of "divorce reform" should be the creation of a more healthy public sentiment on this question. Then will follow measures that will do good in proportion to their stringency. A few practical suggestions as to the salient features of remedial divorce legislation may not be out of place.
Persons seeking at the hands of the civil law relief in matrimonial troubles should have the right to ask for divorce _a vinculo_, or simple separation _a mensa et thoro_, as they may elect. The number of legally-recognized grounds for divorce should be lessened, and "noiseless" divorces forbidden. "Rapid-transit" facilities for passing through divorce courts should be cut off, and divorce "agencies" should be suppressed. The plaintiff in a divorce case should be a _bona fide_ resident of the judicial district in which his petition is filed, and in every divorce case the legal representatives of the State should appear for the defendant, and, by all means, the right of remarriage after divorce should be restricted. If divorce cannot be legislated out of existence, let, at least, its power for evil be diminished.
James Cardinal Gibbons.
I am asked certain questions with regard to the attitude of the Episcopal Church towards the matter of divorce. In undertaking to answer them, it is to be remembered that there is a considerable variety of opinion which is held in more or less precise conformity with doctrinal or canonical declarations of the church. With these variations this paper, except in so far as it may briefly indicate them, is not concerned. Nor is it an expression of individual opinion. That is not what has been asked for or attempted.
The doctrine and law of the Protestant Episcopal Church on the subject of divorce is contained in canon 13, title II., of the "Digest of the Canons," 1887. That, canon has been to a certain extent interpreted by Episcopal judgments under section IV. The "public opinion" of the clergy or laity can only be ascertained in the usual way; especially by examining their published treatises, letters, etc., and perhaps most satisfactorily by the reports of discussion in the diocesan and general conventions on the subject of divorce. Among members of the Protestant Episcopal Church divorce is excessively rare, cases of uncertainty in the application of the canon, are much more rare, and the practice of the clergy is almost perfectly uniform. There is, however, by no means the same uniformity in their opinions either as to divorce or marriage.
As divorce is necessarily a mere accident of marriage, and as divorce is impossible without a precedent marriage, much practical difficulty might arise, and much difference of opinion does arise, from the fact that the Protestant Episcopal Church has nowhere defined marriage. Negatively, it is explicitly affirmed (Article XXV.) that "matrimony is not to be counted for a sacrament of the Gospel." This might seem to reduce matrimony to a civil contract. And accordingly the first rubric in the _Form of Solemnization of Matrimony_ directs, on the ground of differences of laws in the various States, that "the minister is left to the direction of those laws in everything that regards the civil contract between the parties." Laws determining what persons shall be capable of contracting would seem to be included in "everything that regards the civil contract;" and unquestionably the laws of most of the States render all persons legally divorced capable of at once contracting a new marriage. Both the first section of canon 13 and the _Form of Solemnization_, affirm that, "if any persons be joined together otherwise than as God's word doth allow, their marriage is not lawful." But it is nowhere excepting as to divorce, declared _what the impediments are_. The Protestant Episcopal Church has never, by canon or express legislation, published, for instance, a table of prohibited degrees.
On the matter of divorce, however, canon 13, title II., supersedes, for the members of the Protestant Episcopal Church, both a part of the civil law relating to the persons capable of contracting marriage, and also all private judgment as to the teaching of "the Word of God" on that subject. No minister is allowed, as a rule, to solemnize the marriage of any man or woman who has a divorced husband or wife still living. But if the person seeking to be married is the innocent party in the divorce for adultery, that person, whether man or woman, may be married by a minister of the church. With the above exception, the clergy are forbidden to administer the sacraments to any divorced and remarried person without the express permission of the bishop, unless that person be "penitent" and "in imminent danger of death." Any doubts "as to the facts of any case under section II. of this canon" must be referred to the bishop. Of course, where there is no reasonable doubt the minister may proceed. It may be added that the sacraments are to be refused also to persons who may be reasonably supposed to have contracted marriage "otherwise," in any respect, "than as the Word of God and the discipline of this Church doth allow." These impediments are nowhere defined; and accordingly it has happened that a man who had married a deceased wife's sister and the woman he had married were, by the private judgment of a priest, refused the holy communion. The civil courts do not seem inclined to protect the clergy from consequences of interference with the civil law. In Southbridge, Mass., a few weeks ago, a man who had been denounced from the altar for marrying again after a divorce obtained a judgment for $1,720 damages. The law of the church would seem to be that, even though a legal divorce may have been obtained, remarriage is absolutely forbidden, excepting to the innocent party, whether man or woman, in a divorce for adultery. The penalty for breach of this law might involve, for the officiating clergyman, deposition from the ministry; for the offending man or woman, exclusion from the sacraments, which, in the judgment of a very large number of the clergy, involves everlasting damnation.
It is obvious, then, that the Protestant Episcopal Church allows the complete validity of a divorce _a vinculo_ in the case of adultery, and the right of remarriage to the innocent party. But that church has not determined in what manner either the grounds of the divorce or the "innocence" of either party is to be ascertained. The canon does not require a clergyman to demand, nor can the church enable him to secure, the production of a copy of the record or decree of the court of law by which a divorce is granted, nor would such decree indicate the "innocence" of one party, though it might prove the guilt of the other.
The effect of divorce upon the integrity of the family is too obvious to require stating. As the father and mother are the heads of the family, their separation must inevitably destroy the common family life. On the other hand, it is often contended that the destruction has been already completed, and that a divorce is only the legal recognition of what has already taken place; "the integrity of the family" can scarcely remain when either a father or mother, or both, are living in violation of the law on which that integrity rests. The question may be asked whether the absolute prohibition of divorce would contribute to the moral purity of society. It is difficult to answer such a question, because anything on the subject must be comparatively worthless until verified by experience. It is quite certain that the prohibition of divorce never prevents illicit sexual connections, as was abundantly proved when divorce in England was put within the reach of persons who were not able to afford the expense of a special act of Parliament. It is, indeed, so palpable a fact that any amount of evidence or argument is wholly superfluous.
The law of the Protestant Episcopal Church is by no means identical with the opinion of either the clergy or the laity. In the judgment of many, the existing law is far too lax, or, at least, the whole doctrine of marriage is far too inadequately dealt with in the authoritative teaching of the church. The opinion of this school finds, perhaps, its most adequate expression in the report of a committee of the last General Convention forming Appendix XIII. of the "Journal" of that convention. It is, substantially, that the Mosaic law of marriage is still binding upon the church, unless directly abrogated by Christ himself; that it was abrogated by him only so far that all divorce was forbidden by him, excepting for the cause of fornication; that a woman might not claim divorce for any reason whatever; that the marriage of a divorced person until the death of the other party is wholly forbidden; that marriage is not merely a civil contract, but a spiritual and supernatural union, requiring for its mutual obligation a supernatural, divine grace; that such grace is only imparted in the sacrament of matrimony, which is a true sacrament and does actually confer grace; that marriage is wholly within the jurisdiction of the church, though the State may determine such rules and guarantees as may secure publicity and sufficient evidence of a marriage, etc.; that severe penalties should be inflicted by the State, on the demand of the church, for the suppression of all offences against the seventh commandment and sundry other parts of the Mosaic legislation, especially in relation to "prohibited degrees."
There is another school, equally earnest and sincere in its zeal for the integrity of the family and sexual purity, which would nevertheless repudiate much the greater part of the above assumption. This school, if one may so venture to combine scattered opinions, argues substantially as follows: The type of all Mosaic legislation was circumcision; that rite was of universal obligation and divine authority. St. Paul so regarded it. The abrogation of the law requiring circumcision was, therefore, the abrogation of the whole of the Mosaic legislation. The "burden of proof," therefore, rests upon those who affirm the present obligation of what formed a part of the Mosaic law; and they must show that it has been reenacted by Christ and his Apostles or forms some part of some other and independent system of law or morals still in force.
Christ's words about divorce are not to be construed as a positive law, but as expressing the ideal of marriage, and corresponding to his words about eunuchs, which not everybody "can receive." So far as Christ's words seem to indicate an inequality as to divorce between man and woman, they are explained by the authoritative and inspired assertion of St. Paul: "In Christ Jesus there is neither male nor female." A divine law is equally authoritative by whomsoever declared--whether by the Son Incarnate or by the Holy Ghost speaking through inspired Apostles. If, then, a divine law was ever capable of suspension or modification, it may still be capable of such suspension or modification in corresponding circumstances. The circumstances which justified a modification of the original divine law of marriage do still exist in many conditions of society and even of individual life. The Protestant Episcopal Church cannot, alone, speak with such authority on disputed passages of Scripture as to justify her ministers in direct disobedience to the civil authority, which is also "ordained of God." The exegesis of the early church was closely connected with theories about matter, and about the inferiority of women and of married life, which are no longer believed.
Of course this is a very brief statement. As a matter of fact the actual effect of the doctrine and discipline of the Protestant Episcopal Church on marriage and divorce is that divorce among her members is excessively rare; that it is regarded with extreme aversion; and that the public opinion of the church maintains the law as it now is, but could not be trusted to execute laws more stringent. A member of the committee of the General Convention whose report has been already referred to closes that report with the following protest:
"The undersigned finds himself unable to concur in so much of the [proposed] canon as forbids the holy communion to a truly pious and godly woman who has been compelled by long years of suffering from a drunken and brutal husband to obtain a divorce, and has regularly married some suitable person according to the established laws of the land. And also from so much of the [proposed] canon as may seem to forbid marriage with a deceased wife's sister."
The final action on these points, which has already been stated, indicates that the proposed report thus referred to was, in one particular at least, in advance of the sentiment of the church as expressed in her General Convention.
Henry C. Potter.
_Question (1.) Do you believe in the principle of divorce under any circumstances?_
The world for the most part is ruled by the tomb, and the living are tyrannized over by the dead. Old ideas, long after the conditions under which they were produced have passed away, often persist in surviving.
Many are disposed to worship the ancient--to follow the old paths, without inquiring where they lead, and without knowing exactly where they wish to go themselves.
Opinions on the subject of divorce have been, for the most part, inherited from the early Christians. They have come to us through theological and priestly channels. The early Christians believed that the world was about to be destroyed, or that it was to be purified by fire; that all the wicked were to perish, and that the good were to be caught up in the air to meet their Lord--to remain there, in all probability, until the earth was prepared as a habitation for the blessed. With this thought or belief in their minds, the things of this world were of comparatively no importance. The man who built larger barns in which to store his grain was regarded as a foolish farmer, who had forgotten, in his greed for gain, the value of his own soul.
They regarded prosperous people as the children of Mammon, and the unfortunate, the wretched and diseased, as the favorites of God. They discouraged all worldly pursuits, except the soliciting of alms. There was no time to marry or to be given in marriage; no time to build homes and have families. All their thoughts were centred upon the heaven they expected to inherit. Business, love, all secular things, fell into disrepute.
Nothing is said in the Testament about the families of the apostles; nothing of family life, of the sacredness of home; nothing about the necessity of education, the improvement and development of the mind.
These things were forgotten, for the reason that nothing, in the presence of the expected event, was considered of any importance, except to be ready when the Son of Man should come. Such was the feeling, that rewards were offered by Christ himself to those who would desert their wives and children. Human love was spoken of with contempt. "Let the dead bury their dead. What is that to thee? Follow thou me." They not only believed these things, but acted in accordance with them; and, as a consequence, all the relations of life were denied or avoided, and their obligations disregarded. Marriage was discouraged. It was regarded as only one degree above open and unbridled vice, and was allowed only in consideration of human weakness. It was thought far better not to marry--that it was something grander for a man to love God than to love woman. The exceedingly godly, the really spiritual, believed in celibacy, and held the opposite sex in a kind of pious abhorrence. And yet, with that inconsistency so characteristic of theologians, marriage was held to be a sacrament. The priest said to the man who married: "Remember that you are caught for life. This door opens but once. Before this den of matrimony the tracks are all one way." This was in the nature of a punishment for having married. The theologian felt that the contract of marriage, if not contrary to God's command, was at least contrary to his advice, and that the married ought to suffer in some way, as a matter of justice. The fact that there could be no divorce, that a mistake could not be corrected, was held up as a warning. At every wedding feast this skeleton stretched its fleshless finger towards bride and groom.
Nearly all intelligent people have given up the idea that the world is about to come to an end. They do not now believe that prosperity is a certain sign of wickedness, or that poverty and wretchedness are sure certificates of virtue. They are hardly convinced that Dives should have been sent to hell simply for being rich, or that Lazarus was entitled to eternal joy on account of his poverty. We now know that prosperous people may be good, and that unfortunate people may be bad. We have reached the conclusion that the practice of virtue tends in the direction of prosperity, and that a violation of the conditions of well-being brings, with absolute certainty, wretchedness and misfortune.
There was a time when it was believed that the sin of an individual was visited upon the tribe, the community, or the nation to which he belonged. It was then thought that if a man or woman had made a vow to God, and had failed to keep the vow, God might punish the entire community; therefore it was the business of the community to see to it that the vow was kept. That idea has been abandoned. As we progress, the rights of the individual are perceived, and we are now beginning dimly to discern that there are no rights higher than the rights of the individual. There was a time when nearly all believed in the reforming power of punishment--in the beneficence of brute force. But the world is changing. It was at one time thought that the Inquisition was the savior of society; that the persecution of the philosopher was requisite to the preservation of the state, and that, no matter what happened, the state should be preserved. We have now more light. And standing upon this luminous point that we call the present, let me answer your questions.