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The Pamphlet Collection of Sir Robert Stout: Volume 8

The Divorce Question

The Divorce Question.

In the minds of a considerable class Divorce and Scripture are as inseparably bound up together as the Old and New Testaments in the family Bible. Now this is a prejudice which, however respectable in its origin, is only entitled to as much notice as mere prejudice should commonly claim. There is a religio of the present day even, so intimately associated with our ordinary habits of reflection and operations of the mind, that it becomes harder with increasing years to dislodge it from its position. First impressions of thought, like those of personal appearance, are often fondly clung to; we do not like to give them up, from a sense of implied reflection on our discernment; and so in proportion to the pain and mortification felt at friendship violated, or at confidence misplaced, is the feeling of injured mental pride and self-conceit at being obliged to renounce at last what the bias of education has taught us to maintain. The man of sober mind commonly avoids a singularity of thought as he would an eccentricity in dress, forgetting that an important principle may often be involved in undue concession to another's sentiment, page 109 and that ease of mind may be utterly wrecked in slavishly deferring to the opinion of others.

The adversaries of the Divorce Bill now before the Legislature may all the time then be battling with a shadow while they fancy they are fighting for a principle. They may be knights of La Mancha tilting at wine skins while they imagine themselves conservators of domestic virtue. For if they base their objections to the Bill on scriptural grounds, the burden of proof lies at their door : semper præsumitur pro neganti. And affirmed it may be, without any hesitation or ambiguity, that Scripture has nothing whatever to do with the question in any one of its bearings. Divorce is wholly and entirely a civil matter, and should be dealt with as such. And why it should be so treated, is from the utter absence of any legitimate proof of the prohibition of divorce in the biblical writings. Had any incontrovertible testimony existed of the opposite kind we may rest well assured the opponents of the measure would have been ready enough to bring them forward. They have not done so. And in the mean time ample evidence is being furnished in the old country of the beneficial action of such a law when judiciously, decorously, and for sufficient reasons allowed. To appeal to the Bible as adverse to divorce, in the face of a somewhat crowding list of scripture incidents which it is unnecessary to particularise, is simply to laugh at us. We recognise no reason why the darkness of yesterday should overcloud the light of to-day; or why, when the Legislature steps in to redress the wearing and more private troubles of its members, it should be charged with loose aims and iniquitous practices.

It is not good for man to be alone. So far men of all climes and creeds are fully persuaded. The expediency of marriage, and its consequent obligations, are for the most part as unreservedly admitted. The common sense of civilised humanity urges the need of the former, and the commonweal of society the policy and necessity of the latter. Here and so far we are all no common ground, professing one great unity of thought and similarity of action. As for the exceptional cases that Socialism and Mormonism would seem to offer, we need hardly linger on those whims of humanity that crop up from time to time like the eccentricities in human character. From the time of the Essenes, the Flagellants, and Fanatics of Munster, we have seen as it were these moral pustules breaking out upon the surface of society, tending, we may well believe, in the course of time, to clear the religious constitution and induce a more healthy tone. On marriage, then, and its high political import, small diversity of opinion is ever likely to exist. The educational prejudice that would stamp its origin with divine sanction is after all very harmless. The stickler for facts might of course point to those early days when even Constantine thought it policy to secure ecclesiastical countenance to his measures, and to concede to the page 110 clergy the privilege of performing a marriage ceremony. Hitherto there had been little more than a personal compact, terminable but too often at the roving fancy of a dissolute partner. And even after this, the marriage obligation needed the more stringent code of a Theodosius to counteract that rude selfishness and laxity which, however natural, must in the long run be prejudicial to the State. And the truth of this we find fully admitted in the policy that marked all after government. Recognising fully, as statesmen did, the absolute necessity of some marriage tie, indissoluble except by the power that enacted its celebration, they were willing enough to grant the boon of solemnisation to the clergy under an implied assurance of general support. By doing this they both evinced a wholesome respect for the ignorant prejudices around them, and conferred a graceful compliment on that ever-fermenting clerical body whose ordinary lust of wealth and personal consideration is only to be equalled by their lust of power. The policy so wisely earned out by our ancestors is the policy we have since endorsed, and one that every civil society is likely to perpetuate.

Assuming then, on the above grounds, that the marriage rite is due in its integrity to state enactment, that otherwise the union of the sexes would, for a long interval at least, have been little more than what the old Roman poet tells us was the procedure of an early age—

"Et Venus in silvis jungebat corpora amantum :
Conciliabat enim vol mutua quamque cupido,
Vel violenta viri vis atque impensa libido,
Vel pretium, glandes atque arbuta, vel pira lecta"

we proceed briefly to maintain that what a state at one time has had the power to enact, it also has, at another time, the power to modify. If the state out of consideration for the general body see fit to restrain the licence of the individual by compelling him to conform to such laws and observances as shall promote his own well-being and that of others, no doubt it can legitimately do so. And with equally acknowledged right can it afterwards introduce such alleviations as may seem called for either by the more advanced civilisation of the age, or by the reiterated requests of a no inconsiderable body of silent petitioners. It is not the four or five closely printed columns of a member's speech—the cullings of any commonplace book or cyclopaedia—that will set a question like this at rest; nor will it avail to grub among the rubbish of bygone centuries, or the dusty folios of modern precedents, to teach us a policy meet for our own. "While history may be philosophy teaching by example, it cannot and does not lay down any rule of conduct that shall be equally applicable to all classes at all times. As we look around us, and see Nature's whole aspect ever undergoing change—mountains worn down, rivers diverted, coast lines altered, continents upheaved or depressed and these going on, it may be slowly, page 111 but with undeviating persistency, is it reasonable to suppose that human thought is alone to remain inactive, or be crushed under the weight of a bugbear of ecclesiastical precedent?

A young, but a would-be paternal, legislature is laudably anxious to relieve its people; and reflecting how domestic grievances need careful handling, especially when originating neither in wantonness nor lust, is endeavouring to frame a Matrimonial Causes Bill that holds out some succour and redress to suffering claimants, and in cases of well supported evidence, absolute exemption from the marriage tie. The woman's social position is very frequently one as undeserved as it is painful, and we cannot imagine why, because her adultery may be more eventful than that of the man, the disabilities under which she has hitherto laboured should be used as an argument to her prejudice. A good-intentioned legislature is supposed to act impartially, not insisting so much collectively on their sexual superiority, as they may do individually in the more contracted sphere of private life. To grant a wronged and outraged woman mere exemption from bed and board is, in our eyes, to mock her. It is not dealing fairly by her. She has her natural instincts as well as the man, and should be able in her hour of social disgrace and mortification, to look upon the legislature in loco parentis, and to expect an aid that shall at least alleviate what it cannot nullify. That the man should profit by his own wrong is surely contrary to the first principles of law. That the woman should be cut off from all the kindly feelings and influences of home, to be allowed to pine and eat her heart away, is no less so.

While our law-givers should be fair-dealing, they may be also inexorably just. So impartial, in fact, consistently with sound wisdom and plain common sense, that the very impartiality of their sentence should act as one of the greatest checks on the vice more particularly in question. Both history and poetry abound—heaven knows!—with evidence of woman's passion, and her headstrong impulses; and we shall not go out of our way to dispute such evidence, proffered as it generally is by the stronger and less impressionable sex. "What we would summarily conclude is this, that legislation cannot possibly provide for every phase of criminality, whether in man or woman. It can only deal with the more salient points in each case, and finally generalise for the good of all. If we would willingly lighten the hitherto unduly pressing burden of the woman, we would also punish her delinquency with stern severity. Should she be tempted—we care not now—to forget her position as a wife, and her duty as a mother, we would have her sin, when it has found her out, to lie at her own door, and be a burden on her own back. But let her rights as a woman be fairly recognised, and her weakness not be used as a weapon to slay her. Secured by legal enactment from the life-in-death torture of being chain-bound to a partner whose moral code may be as loose as his page 112 habits are filthy, the woman's nature becomes ennobled by a conscious feeling of personal independence and of increased self-respect—powerful incentives to female caution. But let her once break her marriage vow and desecrate the name of wife, she would be one in our eyes for whom no after expression of public opinion would be too severe, though its spirit were well-nigh that of Draco, and the judgment dealt out to her that of a Rhadamanthus.

The priesthood, it may be observed, are generally adverse to the measure. We are sorry to see it. It scarcely needs this additional disregard for the feelings and exigencies of an aggrieved class, to increase the cordiality of dislike which they stupidly seem to encourage, and which will certainly bear fruit some later day. Insisting as they do on marriage being a divinely hallowed rite, and that they alone are the channels for its celebration, they forget how their very credentials emanate from the Civil Chamber, and how their priestly authority is a mere permissive agency. Years ago, for good and sufficient reasons, the Imperial Parliament legalised marriage before a Registrar. Who will pronounce such marriages invalid, or seek to disparage them on the score of their not possessing the established gloss? If a state has thought it good to do so much, who shall impugn its doing more; and its being indifferent to the sectarian clamour of a class who, with whatever claims on our respect and consideration so long as they confine themselves to the more peculiar arcana of their profession, "are and have ever been of all mankind" (to adopt the remark of Clarendon) "they who form the very worst estimate of human affairs."