"Unlike the Church, I look on marriage as
A civil contract, not a sacrament."
Kenrick here refers of course to the Catholic Church, whose theory of marriage, namely, that it is a sacrament and indissoluble, when once contracted according to the forms of the Church, still influences the legislation and social prejudices of Protestant communities in respect to their own religious forms of marriage. It was not till the twelfth century, and under the auspices of Pope Innocent III., that divorce was prohibited by the civil as well as the canon law. But it is only a marriage between Catholics that is indissoluble under the Catholic system. In the case of a marriage of Protestants, the tie is not regarded as binding. A dissolution was actually granted in such a case where one of the parties turned Catholic, in 1857, by the bishop of Rio Janeiro, who pronounced an uncanonical marriage null and void. Modern legislation in establishing the validity of civil marriages aimed a severe blow at ecclesiastical privilege.
To Rome and not to the Bible we must go for all the authority we can produce for denying that marriage is simply a civil contract. The form, binding one man to one woman, had its origin outside of the Bible. Up to the time of Charlemagne in the eighth century, polygamy and concubinage were common among Christians and countenanced by the Church. Even Luther seems to have had somewhat lax, though not unscriptural, notions on the subject. When Philip, landgrave of Hesse-Cassel, wanted to take another wife, and threatened to get a dispensation from the Pope for the purpose, Luther convoked a synod, composed of six of his proselytes, who declared that marriage is merely a civil contract; that they could find no passage in the Holy Scriptures ordaining monogamy; and they consequently signed a decree permitting Philip to take a second wife without repudiating his first.
In that reconstruction of laws, threatened by the movement in behalf of female suffrage, it is not probable that the patriarchal institution of polygamy will be regarded otherwise than as debasing to both sexes; but perhaps a greater latitude of divorce will be sought as not inconsistent with public morality. Looking at the question abstractly, and apart from all religious and social prejudice, it certainly seems the height of cruelty and absurdity to compel parties to keep up the relations of man and wife when one of them feels towards the other either a physical repugnance or a moral dislike. The impediments often raised by our courts in the way of divorce are gross relics of barbarism, and will be abolished by a higher legislative morality.
"Whoso," says Milton, "prefers either matrimony or other ordinance before the good of man and the plain exigence of charity, let him profess Papist or Protestant or what he will, he is no better than a pharisee, and understands not the gospel; whom, as a misinterpreter of Christ, I openly protest against." And, in another passage, he rebukes those who would rest "in the mere element of the text," as favoring "the policy of the Devil to make that gracious ordinance (of marriage) become insupportable, that what with men not daring to venture upon wedlock, and what with men wearied out of it, all inordinate license might abound."
Mr. J. A. St. John, editor of the Prose Works of Milton, remarks in reference to the marriage law as it now stands in England:—
"Having been invented and established by men, it is calculated to bear with extreme severity on women, who are daily subjected to wrongs and hardships which they would not endure, were the relief of divorce open to them. Those who take a different view descant upon the encouragement which would, they say, be given to immorality were divorce made easy. But the contrary is the truth.
"It is in behalf of morals, and for the sake of imparting a higher tone to the feelings of society, that the present unnatural system should be abolished. Where, what Milton calls, an unconjugal mind exists, there must be unconjugal manners; and to what these lead no one need be told. Where marriage is indissoluble, people presume upon that fact to transgress its laws, which they would not do were it legally practicable to obtain immediate redress.
"However, there is a great indisposition in mankind to innovate in legislation; and they had generally rather be miserable according to rule than free and happy on a novel principle.... Whenever it clearly appears that man and wife can no longer live together in peace and harmony, their separation would be far more beneficial to themselves and favorable to morals, than their compulsory union. Milton's notions of married life are highly flattering to women, whom he evidently contemplates as the equal companions of men."