Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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Editor/Trans.
First Pub. Date
1881
Publisher/Edition
New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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DIVORCE

I.382.1

DIVORCE. The right of the husband to repudiate the wife preceded divorce in all nations, just as force always precedes justice. The Persians, Hebrews and ancient Romans made extensive use of the right which they had arrogated to themselves. The principle of equality between man and woman began to be sanctioned, under Solon in Greece, Herod at Jerusalem, and Domitian at Rome, by the right given the wife of repudiating her husband. The fathers of the church themselves were much divided upon this important question of the indissolubility of marriage, and if Sts. Ambrose and Epiphanius permitted divorce, St. Augustine rejected at with all his energy. In 860 pope Nicholas I., who wished to force Lothair I. to take back his wife Teutbergia, maintained the doctrine of the absolute indissolubility of marriage with so much authority that the king finally yielded. This was a sort of recognition, by the civil power, of the principle established by the court of Rome. Still later the rupture of the eastern and western churches, and the reformation, divided Europe into two factions on the subject: the Roman Catholics holding to the indissolubility of marriage, on the one hand; the Greek Christians and Protestants making a large practice of divorce, on the other. At last the law of 1792 allowed divorce in France. The provisions of this law rendered very easy the rupture of a union become irksome to the married couple. It provided for two kinds of divorce: separation by mutual consent, and divorce on account of incompatibility of temper.

I.382.2

—When two people, married to each other, wished to be divorced, and when, consequently, the consent was mutual, they had to convoke at least six of their nearest relations, or, these failing, friends. This call could be made through the instrumentality of a bailiff, or by simple verbal invitation. The two had to present themselves in person at this meeting, and there make their request. The matter was then discussed, and each one of the parties gave his or her reasons for desiring a separation. Remarks could be made by those present, and if, when the case was heard, the two parties persisted, a document was prepared, setting forth the uselessness of all attempts at reconciliation, and the irrevocability of the decision of the parties.

I.382.3

—Nevertheless the legislator, wishing to surround the dissolution of marriage with all proper safeguards, and understanding that in such cases it would be dangerous to take no account of time, decided that so soon as the formalities just indicated were gone through with, the married couple should wait at least one and at most six months, before appearing a second time before the civil officer. The latter was then obliged to decree the divorce.

I.382.4

—The same forms were used when the divorce was for incompatibility of temper. In this case, however, the act assuming a litigious character, several modifications of a secondary nature were introduced. Thus, both complaint and defense had to be made regularly, and the plaintiff, after choosing his three relatives or friends, was obliged to summon the defendant officially to appear on a certain day before the assembly prescribed by law. The defendant, on the other hand, had to bring forward three relatives or friends to complete the assembly. Two meetings should take place on the day fixed upon, and indicated by the summons of the plaintiff; and if the defendant, duly summoned, did not present himself with the members of the tribunal chosen by himself, the divorce could be decreed by default. The civil officer, a mute but indispensable witness at the two reunions, was charged with the proper execution of all the formalities prescribed by law. After the decision of the two meetings the same conditions of delay were imposed.

I.382.5

—This law can be criticised from many standpoints, and it is needless to say that it was the object of violent attack, inasmuch as it was abolished. Nevertheless we must call, attention to this fact, that the legislator of 1792 in France made the witnesses in this affair, so delicate in every respect, the relatives of the parties, that is, the persons the most interested. The interests and dignity of the husband and wife were protected by the very nature of the tribunal before which they exposed their troubles, at least as much as by the power which they had of seeing to its composition themselves; and morality could only be the gainer by the patriarchal form prescribed by the law.

I.382.6

—The authors of the civil code retained divorce, but changed the character given to it by the law of 1792, and instead of a natural act, and one implying nothing blamable whatever, they sensibly approached the Catholic doctrine, and looked upon it only as an evil sometimes necessary, and tolerated by the law. In retaining it they rather bowed before public opinion than obeyed their conscience. Divorce now became little accessible to the poorer classes, by reason of the precautions and formalities with which it was surrounded. Even this law, a mean between divorce frankly accepted by the law and its abolition, recognized several kinds of divorce Every action for divorce gave rise to the following measures: The providing of maintenance for the children was imposed upon the husband, whether plaintiff or defendant, unless otherwise ordered by the court. An action for divorce did not suspend marital power, but during the course of the trial the wife could leave the conjugal roof, and receive alimony from her husband. Her place of domicile was fixed by the court. The husband remained master, during the trial, of his wife's rights and acts. Such was the situation of the married couple during the trial. But the solicitude of the legislator did not end here, for he evolved a mass of formal detail whose-evident object was to prevent the frequency of divorce, by imposing costly and disagreeable obligations upon the married couple. For instance, the law directed the husband and wife to sacrifice the half of their fortune to their children, and made a second marriage of the parties impossible before the lapse of four years. A petition for divorce for a determinate cause had to be preceded by an effort toward reconciliation and by a preliminary judgment. An investigation took place, and judgment was not pronounced until after one year of trial. The divorce could not be granted unless the husband was at least 25 years old and his wife 21, nor unless the marriage had lasted at least two and at most 20 years. In no case did the mutual consent of the parties suffice; the agreement of their fathers and mothers was necessary, or, these failing, that of the other living ancestors, following the rules prescribed at the time of marriage. A divorce once pronounced was irrevocable, and the divorced could by no pretext again unite legally. Even renewed cohabitation could not revive the marriage.

I.382.7

—In 1816 the tendency of ideas was against divorce, and one of the first acts of the Catholic reaction was to re-establish the indissolubility of the marriage bond in France. We may easily understand this eagerness on the part of the emigrants, and of those who saw in the restoration only the victory of Catholic and monarchical principles over those of the revolution. But it is harder to comprehend the persistency of the chamber of peers, under Louis Philippe, in combating divorce—After the revolution of 1830 M. de Schonen proposed, in the chamber of deputies, the abrogation of the law of May 8, 1816. An immense majority approved the consideration of this proposition, and a committee ad hoc was appointed. M. Odilon Barrot was the reporter of its deliberations. This illustrious orator commenced by proving that the right of divorce would change the very essence of marriage, if that right were to exist unconditionally for both husband and wife; that, consequently, there could be debate only on the civil code system, as compared with that of the law of May 8, 1816. According to M. Barrot, the civil code offered a happy mode of reconciliation between the imperfections of our nature and the necessity of insuring in case of marriage at least an intention of perpetuity. "Laws, to be obeyed, must not do too great violence to our nature, which is always able to avenge itself upon the despotism of the law, either by crime, which is a violent reaction, or by corruption, which is a slow and continual protest against despotism." It is thus right, in the opinion of M. Barrot, that the law should take into account human imperfection, and that it should depart from an absolute principle, which breeds crime and propagates corruption. As to the children, M. Barrot thought their interests were of two kinds, financial and moral, and that divorce preserved these better to them than the doctrine of the indissolubility of marriage—The proposition was adopted by the chamber of deputies, but rejected by the house of peers. Twice the deputies insisted on it; and twice the peers opposed their veto to it. In the presence of this resolve the deputies themselves rejected a proposition of the same nature, whose fate was foreseen.

I.382.8

—Divorce is permitted in England, Russia, Sweden, Germany, Denmark, Holland, Belgium and the United States. Compare the family morals of these privileged countries with those of France, Italy, Spain and other countries in which the indissolubility of marriage has become an article of faith! "Divorce from bed and board is left us by the law," it will be said. Admitted; but by an inexplicable anomaly the rupture of corporal bonds and division of interests do not involve the loss of the rights of the husband. If the unfortunate or imprudent wife legally separated, finds in an illicit union (she can form no other) support, consolation or joy, the husband is, in France, authorized to accuse of adultery the woman who is in fact no more his wife. The husband, on his part, lives without the pale of the law, and this disunited couple, transformed into a public danger, drag down in their fall two others with them.

I.382.9

—Therefore a legislation in harmony with morals and the progress of liberal ideas ought, we think, to have a tendency by its wise provisions, if not to do away with, at least to diminish, adultery and concubinage, the fatal consequences of the indissolubility of marriage. The first consul said, "marriage is indissoluble in this sense, that at the moment when it is contracted each of the parties ought to have the firmest intention never to break it, and ought not to foresee the accidental, and sometimes culpable, causes which may in future render a separation necessary. But that the indissolubility of marriage can be modified in no case whatever, is refuted by the maxims and examples of every age. It is not in the nature of things that two beings organized separately, should ever be perfectly identified. Therefore, the legislator should foresee the results that the nature of things may bring about. The fiction of the identity of husband and wife has always been modified, for that matter—by the Catholic religion, in case of impotence—everywhere by divorce" We are of the opinion of the first consul in this matter, and we think, with Montaigne, that the more the marriage knot is tightened, by taking away all means of dissolving it, the more the bonds of the will and affection are loosened. Marriage is anterior to all law, civil or religious, just as the will of the contractors is anterior to any law regulating the conditions of a contract. We must go back to this our starting point in order to judge, in a healthy way, what part of a contract law and religion may claim to exercise any right over.

HECTOR PESSARD.

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