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clusions upon this subject led to much criticism. The eloquent D'Aguessau says, “That families would be more happy, fortunes better assured, marriages more exempt from the desecrations which disturb them, if the canonists of the latter time had been as severe in their maxims, as jealous of the just authority of parents as the Roman juris-consults, We may add to the opinion of juris consults, the suffrage of the Greek Church, which, following the lead of St. Basil, has canonised the laws of the Emperors, and consecrated their wise provisions.
We join to it the authority of the Church of France. We can prove, by the canons of many councils, held in the 6th, 7th, 8th and 9th centuries, that it not only always detested, condemned and forbade marriages formed without the consent of parents, but even declared them null.
We have thus traced the canon law of Europe for the reason that it is the basis of our statutes, and for the further reason that it stands upon an interpretation of the divine law. Marriage is received in it as a divine relation ordained by God, and designed for the happiness of the human family. That it is the foundation of society, the source of all civil and social order. The care of the Church has been that marriages should be formed upon just considerations, and it prohibits the union of those who can come together only through crime, a breach of modesty and good man
Its severity against incest will not tolerate connections between those spiritually bound. Its abhorence of adultery is such, that the fact, that the parties had held adultering relations, precludes their legal connection. It takes every precaution to secure marriages on Christian principles, and holds the parties to a Christian obligation.
That the Church at Rome claimed powers over the subject of marriage, which independent States could not admit, is very clear to our minds. We are not asserting the legitimacy of that church, nor do we admit its pretensions to supremacy. We are reviewing its legislation with the design of setting forth the ground which Christianity had occupied and maintained on this subject, while the Church was its recognised exponent. From the 8th to the 16th centuries, the Gentile law of divorce was overturned in all its principles and prescriptions.
The practical results of the Reformation, upon the relations of the members of the family and especially upon the relations of husband and wife, have always appeared to us as in a high degree mischievous. License was sought from, and license was tolerated by, the leading chiefs of the reformation, to an extent which has occasioned just reproach. Luther agreed that divorces might be allowed for adultery and abandonment of the conjugal domicil, and in his later writings seemed disposed to enlarge the privilege. Melancthon. confined the divorce to the causes of abandonment and adultery; Calvin to adultery and apostacy. The breach having been made, other teachers enlarged it. Milton and Bucer were favorable to divorces by consent.
The complete prostration of the work which the Church had so laboriously constructed was effected during the French Revolution. The constitution of 1791 had declared, “that religious vows, nor any other engagement, contrary to natural rights, were to be recognized.” In conformity with this assertion of natural liberty, on the 20th September, 1792, the law of marriage and divorce was declared. The preamble is__" That the National Assembly, considering the importance of conferring upon Frenchmen the faculty of divorce, which results from individual liberty, which an indissoluble engagement would impair, &c.”
The law of marriage suppressed the impediments from solemn vows, sacred orders, spiritual relationship, rape and adultery. Divorces were allowed by mutual consent, in favor of one of the parties, upon the allegation of “incompatibility of disposition or character, or for causes, such as madness or idiocy, condemnation to infamous punishment, cruelty, abandonment, notorious bad habits, absence for five years without information, &c. The effect of the divorce was to restore entire independence and the faculty of forming a new contract of marriage.
The code Napoleon operated some reform to the licentiousness of this enactment of revolutionary sensuality and passion. Divorces were allowed by that code for adultery, cruelty, condemnation to an infamous punishment, and by a persevering and mutual consent, rendered in the manner prescribed by law.
The divorce for this last cause could only be sought after the par
ties had cohabited for two years and the husband was twenty-five years of age and the wife twenty-one. It could not be sought after the marriage had continued twenty years or the wife had attained forty-five years. This mutual consent must be rendered to the judge at three different audiences during the year; and must have been given, with the approbation of the parents, or kindred of each, and after an agreement in reference to the children and the property. Another marriage could not take place for a year after the divorce was thus perfected. These prohibitions deprived this faculty of much of its mischievous quality.
The conscience of the French people was never contented with the change of the law, and, after the first delirium of the revolution, in 1816, a law was passed to the effect “that divorce is abolished. The judgments which prescribed it, which remain unexecuted, are inoperative." This antidote has not removed the disorders which spread from the pestilent root of the revolutionary ordinance, and the mitigated miasma which issued from the Code Napoleon. Divorce is allowed in Denmark, Norway, Sweden, in Prussia and Austria among those who do not belong to the Catholic Church. The causes are generally desertion, condemnation for crime, impatience, adultery, cruelty, absence without information. The divorce by mutual consent is not permitted in either of those States.
The States of this confederacy, excepting South Carolina, have adopted laws permitting divorce. These are generally based upon the European codes we have referred to. The administration of these laws has been attended with great laxity, and a severe blow has been given, in consequence, to the public morals.
The practical operation of this administration is such, that it is generally conceded that a person who is determined to have a divorce, by a discriminating selection of his forum, will not fail. The indissolubility of the marriage tie, the permanence of the family bond, the domestic order that the sentiment of its indissoluble character created, are fast leaving us. The abominable sentiment of the National Assembly of '91, that "no convention which restrains natural liberty is to be respected," seems to be
acquiring a hold that cannot but be productive of the greatest mischiefs. The dissolution of the family, the withdrawal of the wife and children from the paternal control and government, have obtained an amount of toleration, even from the judicial decrees and discussions in our country, which discloses a great laxity in principles. Some years ago, in Philadelphia, a wife was suffered to withhold a child from the control of the father--the father being anxious for both wife and child to return to the domestic domicil—for no better excuse for her abandonment being rendered than that the husband had insisted with too much seriousness upon a theoretical view of the supremacy of the husband in the family, and the duty of the wife to render obedience; while another case of a similar character has passed through the courts of New York, and finally came to the supreme court of the Union, in which the paternal authority was set at nought—the husband's greatest offence being that he had insisted, rather rigorously, that his wife should take sulphur and molasses as a medicine!
The substantial grounds in both cases were, that the wife was tired of the conjugal connection she had formed, and preferred the paternal roof to the husband's domicil; and the court in Pennsylvania, as well as New York, bent their principles to enable her to attain her object. In one, and perhaps in both cases, special laws were prompted, in order to perpetuate the condition which the courts had permitted.
The Roman law of divorce is founded upon the principle that marriage is a contract, and, like all other contracts, might be rescinded by consent, or for a breach by either party, which involved its material considerations. Marriage is, unquestionably, a contract in so far as it depends upon the agreement of parties; but it has no resemblance to commercial contracts. The husband and wife scarcely enter upon it on terms of equality; the marriage union can never be dissolved on such terms.
The husband acquires from the union increased capacity and power. He represents the wife in the political and the civil order. He is promised and usually obtains from her affection, reverence and duty. The wife carries into the union a feebleness that solicits protection—a singleness that requires support—affections
and sensibilities that demand objects which she may grasp and to which she may adhere.
In the union, she rarely learns to stand alone, and seldom cherishes wishes for independence. Her necessities for protection are increased. How can she go out of the union as she entered it?
The husband and the wife are not the only parties to the contract; the family has its foundation in this union. Children have an immediate interest in the perpetuity of the union. They come into the world not simply as animals, entitled by the law of nature to the mother's milk, but as moral beings, having an eternal responsibilty. The order of Providence committed the care of fitting thein to meet this condition—not to boards of commissioners, or trustees, or charitable foundations, or to legislative creations of any kind—but to the father and mother, united under a law of immutable obligation; and, as a part of that law, it was “enjoined upon man not to divide what God had so united.”
The children of a marriage, whose parents have become separated, lose that cooperative effort, that combined care and energy, which Providence designed to secure to them. The habits of order and government, that are essential to a family, are material helps to the proper development of children. The concentration of affection and of parental kindness—the evidences of provision and care, that its domestic arrangements make necessary-serve to educate and instruct and soften the younger members of the family. The discipline of the family is that which renders the work of government easy. When that discipline is perfect, the reign of order and of virtue in the state is established; where withheld, it is scarcely possible for the child to attain to a perfect or a pure maturity.
It is not merely in reference to the members of the family that we should regard the institution of marriage. The feelings and the material interests of the menibers are entitled to weighty consideration; but the order of the world rests upon foundations more solid than these. Man is a social and moral being, and, consequently, is placed under a social and moral law. This law determines his relations and duties; this law is the foundation upon which he must build. From the society formed by marriage,