Page:The New International Encyclopædia 1st ed. v. 06.djvu/387

* DIVORCE. 333 DIVORCE. grounds for divoivc in the District of Columbia e.Xfcpt one. The imperial law of I'JOO in (ier- many reduces the causes to about four. It pre- vents the abuse of desertion by requirinjr. I)efore a decree is granted, a jireliniinary suit for the restitution of conjugal rights, and allows a year for the accomplishment of this object. Improved marriage laws have also helped in the matter of divorce. I'xiFOBM Laws. The problem of uniformity took on a new aspect on the apiwarance of the Government re|)ort of ISSil and the dis- cussion that preceded and followed. Tli'e value of national legislation, under constitutional amendment, in restricting the number of divorces, it was then seen, might be very small. The ob- stacles in the way of getting three-fourths of the States to consent to it, and of enforcing it in localities where public sentiment would be hos- tile, appeared very great. Then the transfer of the care of marriage and divorce to the Federal authorities or to State regulation under Federal pr(ivi~lon, with its efTect on laws of inheritance and the like, and upon our present system of di- vision of powers between the Federal and State governments, open many serious and difficult questions. Consequently, most thoughtfid stu- dents of the problem have felt that the present CNperiment, in which thirty-four States and Ter- ritories are already represented, of trying to se- cure uniformity by enacting the bills their com- missionaries on nniforniity prepare and recom- mend, should have fair trial as the better way at present of either gaining all that can be accom- plished or of preparing for the constitutional amendment itself, should that Ije found necessary. The Broadeb Soci.l Movement. It is evident that there is a profound and widespread social movement going on beneath the great variety of law, religion, and other conditions through which this movement finds expression, and which is most marked in the United States. Some re- marks on this broader movement and its recent treatment will, perhaps, Ix>st set forth the sub- ject in its outlines. Until recent years, and even now, divorce is treated chietiy in its legal or ecclesiastical phases. This treatment has also been individualistic to a great degree. That is, both Church and State have regarded chiefly the two individuals directly con- cerned, with some consideration of the interests of the Church or State. But the family has been relatively overlooked. The canon law, the writ- ings of the early fathers, and, in fact, the great body of literature on the sul)ject, are singularly lacking in direct attention to the family as the real subject in the discussion of divorce. The term marriage has been used to cover both the creative agreement in marriage and the subse- quent relation. Two views of the relation and its .dissolution grow out of this. One makes the rela- tion a mere contract from beginning to end. ani therefore .subject to all the remedies of ordinary contracts. The other insists that a xtntun is created by the original contract, and that it is this Hiatus or relation with which divorce deals, sometimes calling it. as Bishop and others have done, "a contract siii finirrix." or "a state of matrimony." But vcrj- infrequently is this called a family, thus in reality making divorce the legal dissolution of a family instead of individual relief from a contract. Some conservative people have said that marriage, after all, is only a modus viccudi. An interminable discussion has gone on over the technical meaning of the Xew Testament, in order to fix the rules of ecclesiastical practice. The Roman Catholic Church has held to a con- sistent course in its ecclesiastical discipline: but has generall_N' been compelled to share its control of divorce in recent times, in the more jirogres- sive countries, with the State. In Russia the rtho- dox Creek Church and other confessions are al- lowed to administer, in all afl'airs of marriage and divorce, according to their own rules. Austrian law also adjusts itself to the ditl'erent faiths of its subjects. And divorce laws, in their grounds for divorce, usually follow the religious opinions of the people. The obligatory civil marriage, with an optional religions celebration, prevails in several Euroi)ean cotmtries. The condition of what may be called the socio- logical strata of a period or country lu-lps to shape the customs or laws of marriage and di- vorce. Among the early peoples of the Mediterra- nean, these subjects were entirely witliin the con- trol of tlie families immediately concerned, as in Japan until recently. The tliree kinds of Roman marriage were the expression of as many types in Roman society. As the early family yields more and more of social function to the State, the individual and relations of contract gradu- ally supplant the family and those of status. All intermediary social forms, especially those of the domestic and communal type, tend to shrivel and lose their functions. Historically the increase and prominence of divorce have marked decaying civilizations. Whether the in- crease of the last thyty years will continue in the United States remains to be seen. There is an element of truth in the claim that the increase of divorce is in one sense the incident of social health. This rests, however, on certain assump- tions concerning those who seek divorce which are of limited application. Christianity came when the Roman world was far along in social disintegration. Its Founder said very little about institutions. Even Church, State, and fainily were left by Him to the devel- opment of the great principles which He set forth. It may be doubted if He ever legislated or in- tended that His utterances should be taken as legislation, even for His Church. Early Chris- tianity necessarily sought men as individuals, and dealt with them as such. ^Marriage, divorce, celibacy, chastity were all considered chiclly with regard to their effect on individual well-being. Their social, institutional bearings were ignored, unless it was in respect to the Church. The family is hardly named in the canon law, which was cast in the matrix of Roman law when in its later stages of individualism, in the regu- lations of Protestant churches. The emphasis of the Reformation on the individual, the art of printing, the use of gunpowder, the beginnings of modern science, and the discovery of Anu'rica all increased the power of the individiuil. T.alcr. tjie ethical and political theories of (irotius, llnblxs, Locke, Rousseau, Blackstone. and .TefTerson. the earlier schools of political economy, the .American and French Revolutions, the rise of the modern industrial system, and still later the use of steam and electricity, have all done much to accelerate those changes bv which the individual and the