THE DIVORCE LEGISLATION OF MASSACHUSETTS.
By Chester F. Sanger.
There evidently exists just at the present time a great and increasing interest in the old and much debated subjects of divorce, and divorce legislation; an interest which is intensified as the population of our younger states with their widely varying laws governing this matter increases and the dangers and opportunities for fraud grow more apparent. Naturally enough, therefore, public attention is invited to these different laws of the several states of our Union, some allowing divorce for one cause, others refusing it upon the same ground, and one state, at least, refusing to grant a divorce for any cause whatever. The remedy for this seems to many to be a national divorce law, establishing in all the states a uniform mode of procedure and a uniform basis upon which all petitions for divorce must be grounded; it must also fix the status of the parties in every state and prescribe the several property rights of each after the entry of the judicial decree which separates them from a union, not of God, as some would try to teach, but often from fetters, the weight and horror of which are known to the parties alone, or to those, who, unlike our theoretical reformers, have had some practical experience in the actual operation of our divorce courts.
While it is a fact, overlooked by the enthusiasts on this subject, that no such national law can be passed without an amendment to the constitution, since the passage of such an act would be an invasion of the rights reserved to the several states; yet in view of this widespread interest in the question, the development and present condition of the laws regulating divorce in our own Commonwealth becomes an interesting matter of inquiry. While such a discussion has little or nothing to do directly with the moral aspects of the subject, it is well to note in passing that the doctrine of the indissolubility of the marriage relation was not made a tenet of the church until as late as 1653. The Mosaic Law made the husband the sole judge of the cause for which the woman might lawfully be "put away," and many Bibical scholars of great attainments have maintained that when rightly interpreted the words of Christ do not restrict divorce to the single cause of actual adultery, while elsewhere in the New Testament divorce for desertion is expressly sanctioned.
The Roman Catholic Church, while it pronounced the marriage tie indissoluble, at the same time reserved to the Pope the right to grant absolute divorce, a right which was often exercised for reward, while her Ecclesiastical Courts in the meantime declared many marriages null and void upon so-called impediments established solely upon the confession of one or the other of the parties seeking divorce. This course is hard to explain satisfactorily if we admit a sincere belief in the justice of her own dogma. It was from this practice of the Church that came the custom of granting partial divorce, or, as it was termed, divorce from bed and board—a divorce which was one only in name, and made a bad matter worse, surrounding both parties with temptations, and being, as it has been said, an insult to any man of ordinary feelings and understanding. It was, to be sure, an attempt to comply with the established doctrine of the Church, but it was a compromise with common-sense. To this same source may be traced the curious procedure in England, known as a suit for the restoration of conjugal rights, wherein a husband or wife, who, being unable to obtain a a genuine divorce, had separated from his or her partner for cause, might be compelled by the power of the law to return to the "bliss too lightly-esteemed."
There is one state in our Union in which, as one of her Judges puts it, "to her unfading honor," not a single divorce has been granted for any cause since the Revolution. But the fact remains, not so much to her unfading honor, perhaps, that she has found it necessary to regulate by statute the proportion of his property which a married man may bestow upon his concubine, while at the same time adultery is not an indictable offence. Another of her Judges has said from the bench, "We often see men of excellent characters unfortunate in their marriages, and virtuous women abandoned or driven away houseless by their husbands, who would be doomed to celibacy and solitude if they did not form connections which the law does not allow, and who make excellent husbands and wives still."
This judicial utterance makes an excellent basis for the statement that it is better to adapt the law to facts as we find them, than to proceed on the principle that as there is no redress called for save where there is a wrong, if we do not allow the redress, there will, of course, be no wrong. There is no escape from the conclusion that divorce or irregular connections will prevail in every community; why not agree with Milton that honest liberty is the greatest foe to dishonest license?
When the founders of the new Commonwealth came to these shores they brought with them of necessity the laws of the mother country, and so we shall find that the divorce laws of England, as they existed at that time, were the early laws of the colonies of Plymouth and Massachusetts Bay. The Ecclesiastical courts of England were invested with full jurisdiction of all matters of divorce, but from about the year 1601 they had steadily refused to grant an absolute divorce for any cause whatever, although they as constantly granted divorce from bed and board, allusion to which has already been made; that is, they decreed a judicial separation of man and wife, which freed the parties from the society of each other, but at the same time left upon them all the obligations of the marriage vow as to third parties. Finally, when divorce was sought for cause of adultery, resort was had to parliament, and in 1669 an absolute divorce for that cause was granted by that body for the first time. This mode of procedure was, of course, a most expensive one, and during the seventeenth century but three decrees absolute were granted, the parties in each belonging to the peerage and the cause being the same.