The Law and the Poor

by Sir Edward Abbott Parry

DIVORCE

“We have thought to tie the nuptial knot of our marriages more fast and firm by having taken away all means of dissolving it; but the knot of the will and affection is so much the more slackened and made loose, by how much that of constraint is drawn closer; and on the contrary, that which kept the marriages at Rome so long in honour and inviolate, was the liberty every one who so desired had to break them; they kept their wives the better because they might part with them if they would; and in the full liberty of divorce, five hundred years and more passed away before anyone made use on’t.”

Michel de Montaigne: “Essays.”
Translated by Charles Cotton. Book II., Chap. XV.

Nearly four hundred years ago Thomas Cranmer, Archbishop of Canterbury, was burned at the stake over against Balliol College, Oxford. You remember how a few days before, in a moment of weakness, he had signed a recantation, and how when the fire was kindled and the flames licked up the faggots they revived the spirit of the martyr within him, and he thrust his right hand into the flames, crying out: “This was the hand that wrote it; therefore it shall first suffer punishment.” But if that hand had offended in matters spiritual, in practical matters it had done good work for the State.

Cranmer’s “Reformatio Legum Ecclesiasticarum” contains some of the best sense about divorce law reform that I have ever read. Its proposals are moderate, sensible and in harmony with the religious ideas of his day, which seem to have been broader and more rational than those of to-day. Had Edward VI. lived a little longer Cranmer’s treatise would have been enacted as the statute law of the country. It is pitiful to think of the four hundred years of misery and injustice under which the citizens of this country have suffered in matters relating to divorce owing to a change of Government in 1553. The Scots did better out of the Reformation and have had a more or less satisfactory divorce law in working order since that date.

Shortly, the propositions that Cranmer proposed were these, and they will be found, I think, to run parallel with the views of the common-sense citizen of to-day. He laid down the command that no husband or wife may abandon the other of his or her own free will and, in order that this might be a practical ideal, he set down the causes for which the Courts were to grant relief. Divorce was allowed for adultery, unless both parties were guilty; desertion; the unduly protracted absence of the husband; or the deadly hostility of the parties. Prolonged ill-treatment of the wife gave her a right to divorce, but even here, as long as there was any hope of improvement, the duty of the ecclesiastical judge was to reason with the husband and make him give bail for good behaviour. Only in the last resort must “she on her part be helped by the remedy of divorce.”

Great stress is laid throughout the treatise on the desirability of reconciliation. “Since in matrimony there is the closest possible union and the highest degree of love that can be imagined, we earnestly desire that the innocent party should forgive the guilty and take him back again should there seem to be any reasonable hope of a better way of life.” Practical effect was to be given to this principle by the Court before proceeding to divorce.

Cranmer was entirely at one with the more advanced thought of to-day in his detestation of “separation orders.” Separation without divorce was, he realised, an overture to immorality.

“It was formerly customary,” he writes, “in the case of certain crimes to deprive married people of the right of association at bed and board though in all other respects their marriage tie remained intact; and since this practice is contrary to Holy Scripture, involves the greatest confusion, and has introduced an accumulation of evils into matrimony, it is our will that the whole thing be by our authority abolished.” What he would have said about our wholesale police court method of separating married people without giving them any rights to form new ties one does not like to imagine. One cannot turn from the short and pithy “Reformatio Legum Ecclesiasticarum” of the sixteenth century to the colossal unwieldy Blue Books of the twentieth century with any sense of satisfaction. Perhaps the most interesting thing to be got out of the latter is a study in contrasts between the body, flavour, and bouquet of archbishops of different vintages.

Thomas Cranmer’s services to the State being no longer available after the Balliol fire, the choice of his Majesty Edward VII., when he issued his Royal Warrant in 1909 for the Divorce Commission, fell on “The Most Reverend Father in God Our right trusty and entirely beloved Counsellor Cosmo Gordon, Archbishop of York, Primate of England and Metropolitan.”