techo-babble

For medieval canonists, the illegality of divorce followed axiomatically from scripture.¹ In the 12th century the Church developed the view that “marriage began by agreement but become complete and indissoluble only when [thereafter] sanctioned by a Church ceremony and consummated in a physical union.”² This formulation did not fit well with extant marriage customs and also raised “embarrassing theological questions about the marital status of Christ’s parents.”³ Accordingly, Pope Alexander III formulated new marriage rules in the late twelfth century. Marriage could be entered by consent alone using “words of the present tense (sponsalia per verba de praesenti).”⁴ Additionally, a promise of marriage “in the future (sponsalia per verba de futuro)” created an “executory contract of marriage” which could be completed by present words or physical consummation.⁵

The Church continued to press for formal marriages and “insisted on public ceremonies, not as a requirement for validity but for the sake of regularity.” Written registration of marriages did not arise until the sixteenth century and therefore public ceremonies served to impress the marriage upon the communal memory.⁶ Even in the formal marriages, it remained the parties who married each other, not the priest.⁷ Indeed, informal, often private, marriages “remained common until the fifteenth century” and it took until the sixteenth century for the predominate social assumption to conclude “that only church marriage were proper.”⁸

The Church’s view of indissoluble marriage could not withstand the friction of real life and over time the illegality of divorce became a fiction as the Church “lavished invention upon notions for nullifying the tie: pre-contract and relationships of consanguinity and affinity could exist in so many conditions that they sufficed for many of the powerful and propertied who wanted the freedom to marry elsewhere.”⁹ A previous clandestine marriage, for example, would make the present marriage void and allow the parties to receive a divorce a vinculo matrimonii. The Church could “not break the chains, but they could declare that the chains were never there.”¹⁰ In some cases, grave offenses in matrimony were seen to vitiate the obligation of co-habitation and the Church would grant a divorce a mensa et thoro (divorce from room and board), allowing the victim to live apart from the offending spouse.¹¹ But the parties remained married.

Clandestine marriages remained a source of tension and “eventually—in 1753—Lord Hardwicke pushed through a bill requiring observance of the rules for a formal church wedding . . . .”¹² The act had little effect on the middle and lower classes where clandestine marriage and other informal local marriage customs “remained widespread.”¹³ Those following the strictures of the Hardwicke act still had an escape from marriage in that procedural requirements were strict and any failure of form would make the marriage void.¹⁴ “Defects could be unearthed years later to justify a declaration of the nullity by an ecclesiastical court . . . .”¹⁵

With marriage and divorce law in the hands of church courts, the law was wrapped around by scriptural interpretations. Yet the imperative of indissoluble marriage was an unrealistic stricture for humans and “the old Canon law was capable of very flexible application, if not manipulation, when pressure was brought to bear.”¹⁶ Thus, the fiction that divorce was not legal developed alongside a myriad of avenues for ending a marriage.

Divorce reform came slowly. An early proposal for reform during Henry VIII’s reign came from Thomas Cranmer, archbishop of Canterbury. Cranmer suggested “full dissolution be permitted for good causes . . . adultery, cruelty, desertion and bitter enmity.”¹⁷ His proposals were never implemented, perhaps because Henry VIII “wished to conform, or to be seen as conforming, to the old law.”¹⁸ Divorce for adultery made its way into English law in the late 1600s when the higher classes began to seek private divorce bills in Parliament.¹⁹

The first wave of reform came in the middle 1800s, in response to, as the story goes, a pauper being jailed for remarrying after his wife deserted him.²⁰ The resulting reform movement resulted in an 1857 act which established “the court for Divorce and Matrimonial Causes” and abolished “the divorce jurisdiction of the Church courts.”²¹ Baker claims this reform was modest because the grounds for divorce were unchanged from those used in private bills.²² I disagree. Breaking the connection between marriage law and church was a major step, one which was surely a prerequisite to all later reform.

Multiple lines of tension began pulling on the structure of divorce law. In literature, H.G. Wells and Bernard Shaw attacked marriage law and patriarchy.²³ In science, the work of “Havelock Ellis and Freud presaged a new scientific attempt to understand sexual relations and their effect on marital discord.”²⁴ World War I’s annihilation, physical and mental, of a generation of men increased the pressure for further divorce reform. In 1918 a series of bills adopted the 1912 Gorell Commission’s suggestions for reform.²⁵ The minority report indicated the tenor of resistance to reform: if divorce “were allowed to spread amongst the lower orders there would be a disintegration of the family life . . . .”²⁶

In 1934, another wave of reform followed publication of A.P. Herbert’s novel Holy Deadlock, culminating in the Matrimonial Causes Act of 1937 which allowed divorce for “adultery, three years’ desertion and cruelty.”²⁷ As divorce rates expanded resistance to further reform grew and would hold until the 1950s. Modern divorce law, allowing divorce based on the breakdown of the marriage, “became law in 1969.”²⁸

Notes

1. Mark, x. 2-12; Luke, xvi. 18; Matthew, v. 31-32; xix. 3-9.

2. John Hamilton Baker, An Introduction to English Legal History, 4th ed. (London: Butterworths LexisNexis, 2002), 479.

3. Ibid.

4. Ibid., 480.

5. Ibid.

6. Ibid., 481.

7. Ibid.

8. Ibid., 481-82.

9. WR Cornish and G. de N. Clark, Law and Society in England 1750-1950 (Sweet & Maxwell, 1989), 469. The pagination I use does not match that of the 1989 edition. Rather, I am using the pagination found in the PDF version of the book available from the University of Cambridge’s web site, available at:
http://www.law.cam.ac.uk/docs/view_doc_info.php?class=12&doc=2624.
All references are drawn from Chapter 5, “The Family.”

10. Baker, An Introduction to English Legal History, 491.

11. Cornish and Clark, Law and Society in England 1750-1950, 468-69.

12. Ibid., 453.

13. Ibid.

14. Ibid., 469.

15. Ibid.

16. Baker, An Introduction to English Legal History, 494.

17. Ibid.

18. Ibid.

19 .Ibid.

20. Ibid., 496.

21. Ibid.

22. Ibid.

23. Cornish and Clark, Law and Society in England 1750-1950, 491.

24. Ibid.

25. Ibid., 493-94.

26. Ibid., 494.

27. Baker, An Introduction to English Legal History, 497; Cornish and Clark, Law and Society in England 1750-1950, 497.

28. Baker, An Introduction to English Legal History, 497.

This is cool: History of America

Media Matters is reporting that the Time magazine columnist Joe Klein declared that Democrats will not be successful in upcoming elections “if their message is that they hate America — which is what [it] has been for the past twenty years.”

Without passing on the validity of Klein’s comments I’ll note they connect, somewhat, with the discussion of the new left we started in my history class yesterday. Early reformers, abolitionists and suffragists, for example, argued in terms of American ideals for their respective societal changes. They believed in lofty ideals which underly our Constitution and they believed in the system that imperfectly implemented those ideals. Starting with the social movements in the 1960s (perhaps even earlier) a new view arises. This new view questions the system itself. It asks the question: Is the thing itself (American democracy) capable of delivering the goods (our lofty ideals) without complete reformation or revolution. The argument changes from “the system needs to live up to its ideals” to “there is something fundamentally wrong with the system.” For people who still see the system as worthwhile, a critique that implicates the validity of the system itself is a very threatening critique indeed.

For more on the new left see Van Gosse, The Movements of the New Left, 1950-1975 (Boston: Bedford, 2005).

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I’ve revised for web publication an answer to my history mid-term exam that I’m particularly pleased with. Here is an excerpt (without footnotes) to tempt you. [Edit: I changed the first paragraph to account for PiJ's nitpick. I also fixed some citation problems.]

As women won the right to vote in 1920 and Progressive feminists won legislative gains protecting industrial workers a split formed among feminists. The split formed between feminists whose thought was rooted in Progressive ideology and those feminists with a libertarian laissez-faire bent.

The difference between Progressives and laissez-faire economic thinkers was, at bottom, a difference about the proper role of government and the meaning of equality and liberty. Laissez-faire thinkers, perhaps more appropriately described as classical legal thinkers, valued formal equality under law and libertarian individualism. They believed interference with the natural order was sure to fail and therefore government should act as a neutral arbitrator. Progressives, their thought tinged with socialism, harbored conceptions of equality and liberty with a somewhat anti-individualist hue. Equality, for Progressives, was a matter of improved conditions for disadvantaged groups and, more broadly, an improved (moral) position for the Republic. They felt government, aided by science (particularly social science), should act affirmatively for the benefit of society. These differing views of government’s role and of equality and liberty led to differing interpretations of legal structures and to conflicts resulting from those differences.

To read the rest choose HTML or PDF.

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