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absolute in Christendom, the Church alone has a right to determine what constitutes the validity of a marriage, and when that marriage is once consummated it is absolutely indissoluble, and possesses a mystical sanctity altogether irrespective of its influence upon society. In opposition to this view there has grown up in the last century a conviction that it is not the business of the State to enforce morals, and especially any particular theological conceptions of duty, that its sole end should be to increase the temporal happiness of the people, and that the restrictions it imposes on individual liberty can only be justified, and should be strictly limited, by this end. According to this view the ecclesiastical and the legal conceptions of marriage are entirely distinct. Marriage should be regarded by the legislator merely as a civil contract of extreme importance to the maintenance of the young, the disposition of property, and the stability of society; and it is the right and the duty of the State, with a sole view to the interests of society, to determine on what conditions it may be celebrated, annulled, or repeated.


In some respects these two views coincide, while in others they conflict. Every statesman will admit that the purity and stability of the marriage state are social ends of great importance, and that a religious sanction contributes to secure them. the same time the legislator will, in some respects, be more severe, and in others more indulgent than the divine. Considering marriage as a contract involving momentous civil consequences, he may insist that it should be entered into publicly, formally, and deliberately, may lay down in the interests of society certain restrictive conditions, and may absolutely refuse, when those conditions are not complied with, to recognise its existence, or to punish those who violate or repeat it. On the other hand, in all questions relating to marriages of consanguinity or to divorce, State interference with the liberty of individuals can only be justified on utilitarian grounds. If, for example, the question be that of marriage with a deceased wife's sister, a legislator imbued with this spirit will consider it wholly irrelevant to discuss whether

such marriages were or were not forbidden in the Levitical code, whether the Levitical code is binding upon a Christian, whether ecclesiastical tradition favours or condemns them. The sole question for him to decide is whether they produce such a clear preponderance of social evils as would justify him in restricting in this respect the natural liberty of the subject. If they do not, they should be permitted, and those who regard them as theologically wrong should refrain from contracting them. A similar principle applies to the difficult question of divorce. At first sight nothing can appear more monstrous than that when two persons have voluntarily entered into a contract with the single purpose of promoting their mutual happiness, when they find by experience that the effect of that contract is not. happiness but misery, and when they are both of them anxious to dissolve it, the law-whose sole legitimate object is the happiness of the people should interpose to prevent it. The presumption against such an interference with individual liberty must always be very weighty, and there are many considerations which tend to strengthen it. Of all forms of wretchedness, that resulting from an unhappy marriage is perhaps the most difficult to anticipate, for it may result from a turn of disposition or an infirmity of temper which is only revealed by the most intimate knowledge. In all ages and countries a vast proportion of these life-long contracts have either been negotiated by the relations of the contracting parties, with only their nominal consent, or have been entered into at an age when there can be little knowledge of life or character, when the judgment is still unformed, or under the influence of a passion which is proverbially fitted to distort it. It is also a well recognised fact, that, as Swift says, the art of making nets' is very different from the art of making cages,' that many of the qualities. peculiarly fitted to attract men into marriage are also peculiarly unfitted to secure the happiness of a home. It may be added that while the chances of unhappiness in this contract are so many, that unhappiness may easily rise to an amount of moral misery no other condition can produce, for it extends to

and embitters the minutest details of daily life, pervades every sphere and depresses every aim. In many cases marriage involves to the weaker party a tyranny so brutal, galling, incessant, and at the same time absolutely hopeless, that it forms the nearest earthly type of eternal damnation. In such cases it would be much more reasonable to speak of the sacrament of divorce than of the sacrament of marriage, and it were hard to say what benefit issues from the contract, unless it be that of relieving death of half its terror by depriving life of all its charm. Thousands of couples who, if freed from the effects of one great mistake, possess all the elements of usefulness and enjoyment, are thus condemned by law to the total sacrifice of the happiness of their lives. Nor are the moral effects less disastrous. No condition can be more fitted to break down and degrade the moral character than that I have described. No condition can present stronger temptations. A moralist may very reasonably doubt whether even open profligacy is more debasing than a legitimate union, in which hatred has taken the place of love, and the unspoken day-dream of each partner is to witness the burial of the other.

It is added that even if the law imposed no restrictions on divorce, perpetual monogamous attachments would always be the most common, for the simple reason that they are those which are most conducive to the happiness of men. They have in their support one of the strongest of all human sentiments-the cohesion of custom. In no other case is this cohesion so powerful, for in no other is the relation so close or so constant. Putting aside the idle cant of satirical writers, every candid observer will admit that the death of a husband or a wife is usually, without exception, the greatest calamity that can befall the survivor. With such a voluntary cohesion severance would be very rare unless there were some strong reason to overcome it, and when so strong a reason exists it would probably be advisable. The birth of children, which makes the stability of the family peculiarly necessary, contributes in itself to secure it, for every child joins its parents by a new bond. Nature has abundantly

provided for the stability of the marriage state when it promotes happiness. Why should the law prevent its dissolution when it. produces pain?

The answer is that these arguments underrate the violence of a passion which is, perhaps, the most dangerous and unruly in human nature, and at the same time neglect to make sufficient allowance for the inequality of the sexes. In the marriage contract the woman is the weaker; she is usually the poorer; her happiness is far more absolutely bound up with her domestic life than the happiness of a man. Her vigour passes before that of her husband. If cast out at a mature age from the domestic circle her whole life is broken, and the very probability of such a fate is sufficient to embitter it. If divorce could always be effected without delay, difficulty, expense, or blame; if the law provided no protection for the weaker partner against those violent passions which may be conceived by one sex in mature age, and which are rarely inspired by the other except in youth, it is easy to predict what would be the result. The tie of custom would in innumerable cases be snapped by the impulse of passion. Very many would never pass that painful novitiate, when tastes and habits have not yet assimilated, which is now so often the preface to many years of uninterrupted happiness. In many cases the mere decline of physical charms would lead to a severance of the bond. The appetite for change would grow with the means of gratifying it, and thus affections would be weakened, habits would be unsettled, and insecurity and misery would be widely spread. Nor would the evil stop here. The stability of domestic life is of vital importance to the position, the education, and the moral culture of the young, and to the maintenance among all classes of those steady and settled habits that are most valuable to the community.

It is not necessary in this place to pursue this subject into detail, or to discuss the exact amount of restriction which in these cases can be judiciously imposed. It is plain that the marriage tie is not one of those which the legislator can deal with on the principle of unlimited freedom of contract. It is also, I

think, plain that the complete ascendency in law of the secular view of marriage must sooner or later lead to a greater extension of the liberty of divorce than in England, at least, is admitted. The condemnation of either partner for any of the graver or more degrading forms of criminal offence, and even habits of inveterate and systematic drunkenness, might very reasonably be made legal causes. The question whether the desire of the two contracting parties, who have discovered that the contract into which they had entered is prejudicial to their happiness, should be regarded as a sufficient ground is a much more difficult one. It is clear, however, that a legislator who accorded such latitude would be perfectly justified in imposing upon both parties such a period of probation or delay as would meet the cases of fickleness or sudden passion, and on the stronger party such special burdens as would to some extent equalise the balance of interest. But his judgment on this matter should be formed solely by an estimate of consequences. He must strike the balance between opposing evils, and his point of view is thus wholly different from that of the theologian who starts with the belief that divorce is in itself necessarily sacrilegious. This is a matter for the conscience and judgment of individuals, but not for the cognisance of law. In the Marriage Act of Lord Hardwicke the question of divorce was not directly raised, but the modern legal doctrine of marriage was fully established by the clause which treated matrimonial contracts as absolute nullities, though they were celebrated with a regular religious ceremony, if certain legal requirements were wanting. The dissolution of religious marriages for temporal reasons was, indeed, not altogether new in British law. In the Regency Bill, which was passed on the death of the Prince of Wales in 1751, there was a clause annulling any marriage contracted by the young heir to the throne before the expiration of his minority without the consent of the Regent, or of the major part of the Council; and a similar principle was involved in the Irish law annulling marriages between Protestants and Catholics, celebrated by priests or degraded clergymen. The Marriage Act of 1753, however, gave this

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