* "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 mensâ 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.