In modern times Hinton was accustomed to compare the marriage law to the law of the Sabbath as broken by Jesus. We find exactly the same comparison in Milton. The Sabbath, he believes, was made for God. "Yet when the good of man comes into the scales, we have that voice of infinite goodness and benignity, that 'Sabbath was made for man and not man for Sabbath.' What thing ever was made more for man alone, and less for God, than marriage?" (op. cit., Bk. i, Ch. XI). "If man be lord of the Sabbath, can he be less than lord of marriage?"
Milton, in this matter as in others, stood outside the currents of his age. His conception of marriage made no more impression on contemporary life than his Paradise Lost. Even his own Puritan party who had passed the Act of 1653 had strangely failed to transfer divorce and nullity cases to the temporal courts, which would at least have been a step on the right road. The Puritan influence was transferred to America and constituted the leaven which still works in producing the liberal though too minutely detailed divorce laws of many States. The American secular marriage procedure followed that set up by the English Commonwealth, and the dictum of the great Quaker, George Fox, "We marry none, but are witnesses of it,"[[335]] (which was really the sound kernel in the Canon law) is regarded as the spirit of the marriage law of the conservative but liberal State of Pennsylvania, where, as recently as 1885, a statute was passed expressly authorizing a man and woman to solemnize their own marriage.[[336]]
In England itself the reforms in marriage law effected by the Puritans were at the Restoration largely submerged. For two and a half centuries longer the English spiritual courts administered what was substantially the old Canon law. Divorce had, indeed, become more difficult than before the Reformation, and the married woman's lot was in consequence harder. From the sixteenth century to the second half of the nineteenth, English marriage law was peculiarly harsh and rigid, much less liberal than that of any other Protestant country. Divorce was unknown to the ordinary English law, and a special act of Parliament, at enormous expense, was necessary to procure it in individual cases.[[337]] There was even an attitude of self-righteousness in the maintenance of this system. It was regarded as moral. There was complete failure to realize that nothing is more immoral than the existence of unreal sexual unions, not only from the point of view of theoretical but also of practical morality, for no community could tolerate a majority of such unions.[[338]] In 1857 an act for reforming the system was at last passed with great difficulty. It was a somewhat incoherent and make-shift measure, and was avowedly put forward only as a step towards further reform; but it still substantially governs English procedure, and in the eyes of many has set a permanent standard of morality. The spirit of blind conservatism,—Nolumus leges Angliæ mutare,—which in this sphere had reasserted itself after the vital movement of Reform and Puritanism, still persists. In questions of marriage and divorce English legislation and English public feeling are behind alike both the Latin land of France and the Puritanically moulded land of the United States.
The author of an able and temperate essay on The Question of English Divorce, summing up the characteristics of the English divorce law, concludes that it is: (1) unequal, (2) immoral, (3) contradictory, (4) illogical, (5) uncertain, and (6) unsuited to present requirements. It was only grudgingly introduced in a bill, presented to Parliament in 1857, which was stubbornly resisted during a whole session, not only on religious grounds by the opponents of divorce, but also by the friends of divorce, who desired a more liberal measure. It dealt with the sexes unequally, granting the husband but not the wife divorce for adultery alone. In introducing the bill the Attorney-General apologized for this defect, stating that the measure was not intended to be final, but merely as a step towards further legislation. That was more than half a century ago, but the further step has not yet been taken. Incomplete and unsatisfactory as the measure was, it seems to have been regarded by many as revolutionary and dangerous in the highest degree. The author of an article on "Modern Divorce" in the Universal Review for July, 1859, while approving in principle of the establishment of a special Divorce Court, yet declared that the new court was "tending to destroy marriage as a social institution and to sap female chastity," and that "everyone now is a husband and wife at will." "No one," he adds, "can now justly quibble at a deficiency of matrimonial vomitories."
Yet, according to this law, it is not even possible for a wife to obtain a divorce for her husband's adultery, unless he is also cruel or deserts her. At first "cruelty" meant physical cruelty and of a serious kind. But in course of time the meaning of the word was extended to pain inflicted on the mind, and now coldness and neglect may almost of themselves constitute cruelty, though the English court has sometimes had the greatest hesitation in accepting the most atrocious forms of refined cruelty, because it involved no "physical" element. "The time may very reasonably be looked forward to, however," a legal writer has stated (Montmorency, "The Changing Status of a Married Woman," Law Quarterly Review, April, 1897), "when almost any act of misconduct will, in itself, be considered to convey such mental agony to the innocent party as to constitute the cruelty requisite under the Act of 1857." (The question of cruelty is fully discussed in J. R. Bishop's Commentaries on Marriage, Divorce and Separation, 1891, vol. i, Ch. XLIX; cf. Howard, op. cit., vol. ii, p. 111).
There can be little doubt, however, that cruelty alone is a reasonable cause for divorce. In many American States, where the facilities for divorce are much greater than in England, cruelty is recognized as itself sufficient cause, whether the wife or the husband is the complainant. The acts of cruelty alleged have sometimes been seemingly very trivial. Thus divorces have been pronounced in America on the ground of the "cruel and inhuman conduct" of a wife who failed to sew her husband's buttons on, or because a wife "struck plaintiff a violent blow with her bustle," or because a husband does not cut his toe-nails, or because "during our whole married life my husband has never offered to take me out riding. This has been a source of great mental suffering and injury." In many other cases, it must be added, the cruelty inflicted by the husband, even by the wife—for though usually, it is not always, the husband who is the brute—is of an atrocious and heart-rending character (Report on Marriage and Divorce in the United States, issued by Hon. Carroll D. Wright, Commissioner of Labor, 1889). But even in many of the apparently trivial cases—as of a husband who will not wash, and a wife who is constantly evincing a hasty temper—it must be admitted that circumstances which, in the more ordinary relationships of life may be tolerated, become intolerable in the intimate relationship of sexual union. As a matter of fact, it has been found by careful investigation that the American courts weigh well the cases that come before them, and are not careless in the granting of decrees of divorce.
In 1859 an exaggerated importance was attached to the gross reasons for divorce, to the neglect of subtle but equally fatal impediments to the continuance of marriage. This was pointed out by Gladstone, who was opposed to making adultery a cause of divorce at all. "We have many causes," he said, "more fatal to the great obligation of marriage, as disease, idiocy, crime involving punishment for life." Nowadays we are beginning to recognize not only such causes as these, but others of a far more intimate character which, as Milton long ago realized, cannot be embodied in statutes, or pleaded in law courts. The matrimonial bond is not merely a physical union, and we have to learn that, as the author of The Question of English Divorce (p. 49) remarks, "other than physical divergencies are, in fact, by far the most important of the originating causes of matrimonial disaster."
In England and Wales more husbands than wives petition for divorce, the wives who petition being about 40 per cent, of the whole. Divorces are increasing, though the number is not large, in 1907 about 1,300, of whom less than half remarried. The inadequacy of the divorce law is shown by the fact that during the same year about 7,000 orders for judicial separation were issued by magistrates. These separation orders not only do not give the right to remarry, but they make it impossible to obtain divorce. They are, in effect, an official permission to form relationships outside State marriage.
In the United States during the years 1887-1906 nearly 40 per cent, of the divorces granted were for "desertion," which is variously interpreted in different States, and must often mean a separation by mutual consent. Of the remainder, 19 per cent, were for unfaithfulness, and the same proportion for cruelty; but while the divorces granted to husbands for the infidelity of their wives are nearly three times as great proportionately as those granted to wives for their husband's adultery, with regard to cruelty it is the reverse, wives obtaining 27 per cent, of their divorces on that ground and husbands only 10 per cent.
In Prussia divorce is increasing. In 1907 there were eight thousand divorces, the cause in half the cases being adultery, and in about a thousand cases malicious desertion. In cases of desertion the husbands were the guilty parties nearly twice as often as the wives, in cases of adultery only a fifth to an eighth part.