A History of Matrimonial Institutions, Vol. 2 of 3

by George Elliott Howard

The favorite metaphor of the reformers is also employed by Master Henry Smith. In his Preparation to Marriage, written in the reign of Elizabeth, divorce is described as the "rod of mariage" and the "medicine of adultery." If duty be done, he says, "then I need not speake of divorcement, which is the rod of mariage and divideth them which were one flesh, as if the bodie and soul were parted asunder. But because all performe not their wedlocke vowes, therefore He which appointed mariage hath appointed divorcement, as it were, taking a privilege from us when we abuse it. As God hath ordained remedies for every disease, so He hath ordained a remedie for the disease of mariage. The disease of marriage is adultery, and the medicine thereof is divorcement."[220]

Nearly all the English reformers of the sixteenth century agree in rejecting separation from bed and board as a "papist" innovation; and they are equally unanimous in allowing the man for unfaithfulness to put away his wife and contract another marriage.[221] Prevailing opinion appears also to have accorded the same privilege to the woman on like provocation; but there were undoubtedly some in the Protestant ranks who were not so liberal in her behalf. In particular this seems to be the correct inference to be drawn from the antagonism and excitement caused by the bold position of Hooper,[222] who won a perilous distinction through his sensible demand for even justice to the sexes in this regard.[223] According to the common view, malicious desertion on the part of either spouse is a second scriptural ground for the complete dissolution of wedlock. The singular logic through which the words of Paul are made to sustain this distinctively Protestant doctrine may be illustrated by a typical example. "But to our purpose," exclaims Tyndale, "what if a man run from his wife and leave her desolate? Verily, the rulers ought to make a law, if any do so and come not again by a certain day, as within the space of a year or so, that then he be banished the country; and if he come again, to come on his head, and let the wife be free to marry when she will." But how is this liberty to be reconciled with the words of Paul who allows a brother or sister a divorce when deserted by an unbelieving spouse? Easily; for elsewhere "he saith, 'If there be any man that provideth not for his, and namely for them of his own household, the same denieth the faith, and is worse than an infidel.' And even so is this man much worse to be interpreted for an infidel, that causeless runneth from his wife."[224]

Far more daring than any of the English writers before Milton is Martin Bucer, of Strassburg, whose doctrines of divorce comprised in the book dedicated to Edward VI. are almost as bold as those of Zwingli. According to this famous theologian, for two years professor at Cambridge, and greatly venerated by his contemporaries, divorce is a divine institution; and it ought to be granted not merely for unfaithfulness and desertion, but for many other reasons as well. It is curious, but thoroughly in keeping with the mental habits of his age, to see how he persuaded himself that the causes of divorce sanctioned by the decrees of the "pious emperors" from Constantine to Justinian are not "contrary to the word of God;" may therefore "be recalled into use by any Christian prince or commonwealth;" and are thus "by divine approbation" valid among Christians at the present hour.[225] Usually in his treatise he advocates equal liberty of divorce for both consorts; but, in contradiction to the spirit of his own teaching, in one chapter he sets forth a doctrine which would place the wife absolutely at the mercy of a licentious or despotic lord. A passage from the prophet Malachi Bucer renders: "'Take heed to your spirit, and let none deal injuriously against the wife of his youth. If he hate, let him put away, saith the Lord God of Israel. And he shall hide thy violence with his garment'—that marries her divorced by thee."[226] On this authority he concludes that "by these testimonies of the divine law ... the Lord did not only permit, but also expressly and earnestly commanded his people, by whom he would that all holiness and faith of marriage covenant should be observed, that he who could not induce his mind to love his wife with a true conjugal love, might dismiss her, that she might marry to another."[227] Verily this is naïve morality. Such singular care for the wife's happiness finds scarcely a parallel, unless indeed it be in the ethics of John Milton, to which we must presently recur.

But positive evidence of the views of the Reformation Fathers has been preserved for the time of Edward VI. Under Henry VIII. the principles of the canon law touching divorce remained in full force, except that by restricting the number of forbidden degrees to those recognized by the Levitical code, and through the abolition of pre-contracts, the chances for escaping the ties of marriage by crooked ways were somewhat lessened.[228] The restoration of pre-contracts[229] under Edward VI., however, caused the reformers to fear lest the old evils growing out of clandestine unions and nullification of false wedlock on the pretext of previous sponsalia de praesenti would also be revived; and this quickened their desire for a formal settlement of the law of divorce in harmony with the altered views of the English church. Accordingly, an act of Parliament authorized the appointment of a commission of thirty-two persons to prepare a "complete code of ecclesiastical laws."[230] The commission selected in pursuance of this statute comprised the most learned divines and lawyers of the Protestant party. Their task was well performed; and their report, drafted mainly by Cranmer and translated into Latin by Dr. Haddon and Sir John Cheke, was submitted in 1552 under the title of Reformatio Legum Ecclesiasticarum.[231]

This code, though it was never put in force, perhaps in consequence of the king's death, is regarded as a faithful index of Protestant opinion. Before referring to its treatment of the question of divorce, some of its general provisions may be mentioned. These often show the strong common-sense and lofty moral purpose of its framers. The consent of the parent or guardian is made necessary to a valid marriage. Children whose reasonable desires in matrimony are hindered by the caprice or unkindness of those having authority over them are granted the right of appeal to the ecclesiastical magistrate, who may give redress. Aged women are advised to forbear from wedlock with young men. A marriage secured through fear or violence is rendered void. An attempt is also made through severe penalties to check those crimes against women which, as elsewhere shown, were first effectively dealt with during the Puritan Commonwealth.[232] "They ordered that the betrayer of a virgin should be excommunicated until he had married his victim, if it was in his power to wed her; or until he had assigned to her a third of his property, or made some other sufficient arrangement for the support of her offspring," if on account of legal impediment he could not make her his wife.[233]

Hereafter, according to the report, spiritual affinity is not to count as an impediment to matrimony. Separation a mensa et thoro is not recognized; but complete divorce a vinculo matrimonii is granted "in cases of extreme conjugal faithlessness; in case of conjugal desertion or cruelty; in cases where a husband, not guilty of deserting his wife, had been for several years absent from her," provided there be reason to believe him dead; "and in cases of such violent hatred as rendered it in the highest degree improbable that the husband and wife would survive their animosities and again love one another;"[234] but separation is not permitted for frequent, though not incessant or vehement, quarrels.[235] Divorce is denied where both partners are guilty of unfaithfulness; and when one is guilty, only the innocent spouse is permitted to contract another marriage. Self-divorce is forbidden. In all cases it is the province of the ecclesiastical court to determine whether there exists a just cause for separation.[236] Finally, it may be noted that adultery as a crime is severely dealt with, though the commissioners do not go to the length of prescribing capital punishment, as some of the English reformers would have desired. The guilty husband, if a layman, shall "restore to his injured wife whatever possessions she had brought him, and also surrender to her one-half of all his other property. He was, moreover, sentenced to exile or imprisonment for life. Convicted of the same offence, the wife lost her dower and all interest in her husband's property, and was consigned to life-long imprisonment or banishment." For this crime and similar offenses "clerical delinquents" are treated with even greater severity.[237]

The report prepared by the commission never received the sanction of the king; nor does it appear that any authoritative change in the canon law relating to divorce was ever made until the present century. Nevertheless the Reformatio Legum "is a work of great authority, showing the recognized opinion and sentiment of the church of England at that time and containing the views of the first reformers."[238] The principle represented by it was carried out in practice, though it may well be doubted whether, as is sometimes urged,[239] the decrees of the ecclesiastical court ever went so far as expressly to grant dissolution of wedlock. According to the ancient form of judgment, divorce was probably still pronounced only a mensa et thoro; but, whatever the shape of the decrees, there is strong evidence that from about 1548 to 1602, except for the short period of Mary's reign, "the community, in cases of adultery, relied upon them as justifying a second act of matrimony."[240] For already in 1548—four years before Edward's commission had completed its report—the new doctrine had been in a measure sustained by the well-known case of Lord Northampton, brother of Queen Catherine Parr. After obtaining a decision of an ecclesiastical court separating him from his wife, Anne Bourchier, the marquis had contracted another union with Elizabeth Brooke, daughter of Lord Cobham. Subsequently a commission of delegates, headed by the archbishop of Canterbury, declared the second marriage valid, "because the former contract had been absolutely destroyed" by Anne Bourchier's infidelity;[241] and in 1552 this decision was confirmed by an act of Parliament[242] which declares the marriage valid "by the law of God,—any decretal, canon ecclesiastical, law, or usage to the contrary notwithstanding."[243]

This is, indeed, convincing evidence of the changed opinion of the English church. Nor can it be questioned that throughout nearly the whole of Elizabeth's reign popular practice was in harmony with the doctrine thus proclaimed.[244] New marriages were freely contracted after obtaining divorce from unfaithful partners.[245] Clear evidence of this fact is afforded by Bunny, himself strongly opposed to the liberal tendency.[246] As a matter of fact, popular custom, sustained by the profound sentiment of the Reformed clergy, was fast ripening into a law as valid as any which a legislature could enact. Such a tendency, however, could not fail to become more and more obnoxious to many of the leaders of the established clergy, as Elizabeth's reign progressed. Archbishop Whitgift defends the ancient divorce jurisdiction of the spiritual courts against Cartwright,[247] and the Puritan party is treated with ever-increasing rigor. Still the reactionary canons passed by the Chamber of Convocation in 1597, doubtless designed to check what was already looked upon as a dangerous abuse, bear witness to its continued existence; if indeed by implication, as is powerfully argued, they do not directly sanction the dissolution of marriage through divorce.[248]