Nathaniel Hillyer. Egleston.

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which a divorce has never been granted. " The Legislature has
found it necessary to regulate, by statute, how large a propor
tion of his property a married man may give to his concubine." *
This fact proves that where divorces are not permitted, mere
tricious connections will be formed. The above-mentioned law
would not have been passed unless there had been subject-matter
for it to operate upon. But listen to the words of wisdom from
the judicial bench of South Carolina :

" In this country, where divorces are not allowed for any cause whatever,
we sometimes see men of excellent character unfortunate in their marriages,
and virtuous women abandoned or driven away houseless by their husbands,
who would be doomed to celibacy and solitude if they did not form con
nections which the law does not allow, and who make excellent husbands
and virtuous wives still. Yet they are considered as living in adultery,
because a rigorous and unyielding law, from motives of policy alone, has
ordained it so." (Nott, J., in Cusack vs. White, 2 Mill, 279, 292.)

This is the system that a Judge of the Supreme Court up
holds and praises, and is sustained by the Supreme Court of
Georgia, which says : " In South Carolina, to her unfading
honor, a divorce has not been granted since the Bevolution." I

* See Denton vs. English, 3 Brev., p. 147 ; also Canady v. George, 6 Eich.
Eq., p. 103.


would refer the learned judges of New York and Georgia to the
case in South Carolina of Jelineau vs. Jelineau, 2 Des., p. 45,
where a man took his negro slave woman to his bed and board,
and with brutal punishment compelled the unoffending wife to
eat with his colored concubine. To her " unfading honor," the
powers of the State of South Carolina compelled this family to
live on in " peace, purity, and felicity." One of the ablest writers
on this subject, Joel P. Bishop, says :

" That the judges should themselves praise the legislation of their own
State is no more than we ought to expect ; since all men esteem what is their
own more highly than what is another's. Thus it is remarked by O'Neal, J. :
1 The most distressing cases, justifying divorce even upon Scriptural grounds,
have been again and again presented to the Legislature, and they have uni-
Ibrmly refused to annul the marriage tie.' They have nobly adhered to the
injunction, ' Those whom God has joined together, let not man put asunder.'
The working of this stern policy of ' nobly ' refusing redress even in the
1 most distressing cases,' where Scripture joined with reason in crying for
redress, has been to the good of the people and the State in every respect.'
And another of her judges exclaims : l The policy of this State has ever been
against divorces. It is one of her boasts that no divorce has ever been
granted in South Carolina.' Could South Carolina truly declare that no hus
band within her borders had ever proved unfaithful to the marriage vow, and
no wife had been false to her husband ; that the observation judicially made
by one of her judges concerning marriages in this State is in no part true,
namely, ' all marriages almost are entered into on one of two considerations,
love or interest, and the Court is induced to believe the latter is the founda
tion of most of them' (Thompson, J. } in Devall vs. Devall, 4 Des., 79) ; that
no judge of hers had from the judicial bench proclaimed it a virtue to com
mit the legal felony of polygamy, and to live in adultery ; that no class of
men existed in the State calling for legislation to regulate their connections
with their concubines, then, indeed, might the people of the other States
talk of ' unfading honor,' which had settled as a halo, or as a crown of glory
about her brow ! "

Another view of the domestic virtue and felicity of South
Carolina law can be had by reference to the United States
Census of 1880, which shows the number of mulattoes, or the
mixed races, in that State. Where concubinage is recognized,
there is no pressing need for liberal divorce laws.

Judge Davis says : " In the colonial history of the State of
New York, for more than a century, divorces were unknown. 7 '
The Patroon Courts granted divorces in 1630, and other divorces
were granted in 1655. In Massachusetts divorces were granted
before 1674. In Connecticut, before 1655. I am informed that the
declaration by Judge Davis, that a legal divorce can be obtained


in New York in twelve hours, is incorrect. In case of a default, the
plaintiff cannot get judgment in less than twenty days. If the
defendant answers, the motion for judgment must be made at
the regular Special Term, in accordance with the accurate interpre
tation of rule 77 by Judge A. R. Lawrence. In this latter case,
the plaintiff cannot get judgment in less than one month. It
usually takes at least two months to get judgment in the sim
plest divorce case. But if it be true in the case specified by Judge
Davis, where the crime is adultery and the parties are agreed,
that a legal divorce and marriage can occur within twelve hours,
the question is, Who is responsible for such laws f and can we
safely trust legislators who have placed the marriage institution
on such uncertain foundations to draw up a constitutional
amendment giving general laws to all the States ? Again, Judge
D a vis's inferences from his facts are not logical. He says the
percentage of divorces is largest in States furnishing the readiest
facilities for dissolving the union. True, but it is not because
the inhabitants of that State are made fickle and faithless by the
laws, as he suggests, but because large numbers of persons
come from States having rigid divorce laws into those furnish
ing the readiest facilities for their purpose. The number of
divorces granted in a given State is no indication of the general
discontent of its own citizens.

Judge Davis is equally unfortunate in his facts of ecclesias
tical history. He calls monogamy " an Hebraic Christianized
idea." The Hebraic part of that idea was pure polygamy ; the
Christianized part was the unchanged polygamy of the early
Christian church, except where and until it came in contact with
the monogamic Greek and Roman civilizations omitting the
Germanic and Norse monogamy from the account, only because
Christianity reached them after its modification by Roman
civilization. Neither Christ nor his disciples ever attempted to
change polygamous into monogamic marriage, any more than
they attempted to change absolute political despotism into con
stitutional or republican government, or to abolish slavery
where they found it.

The Catholic Church early seized the control of marriage, as
she did of every institution that would give her a hold on man
kind, and administered its ordinances in the most tyrannical
form as regards the masses, her instinct ever being restrictive ;
though she always claimed for herself the right of divorce, and


exercised it for what she deemed sufficient cause. One of the
prominent features of the Reformation was the demand of its
great leaders for free divorce, in the interests of morality, in
view of the licentiousness of Catholic Europe. And to-day the
only hope for the purification of manners and morals is in free
divorce ; in elevating the ideal of marriage so that it shall con
sist of the spiritual as well as the physical element. Where un-
fitness exists, it would be for the interest of society for the
state to step in (supposing authority in the matter an admitted
fact), and insist on annulling the contract, instead of impeding
a separation. The popular objections to divorce are unsound
and contradictory.

First. It is said, to make divorce respectable is to break up
all family relations, which is to say that human affections are
the result of church canons and statute laws. The love of men
and women for each other and for their children existed long
before human governments were established, and will survive
when all these artificial arrangements shall have passed away.
Did the happy wives in this State ever suppose that the regret
they felt in leaving home, husband, and children, and the joy
in returning, were due to the stringent divorce laws of New
York j and that without these they would have been wanderers
on the face of the earth ? To open the door of escape to those
who live in contention, would not necessarily embitter the rela
tions of those who are happy. On the contrary, freedom in all
relations strengthens the bond of union. "When husbands and
wives do not own each other as property, marriage will be a
life-long courtship, not a weary yoke, from which both may
sometimes long for deliverance. Many a tyrannical husband,
knowing that public sentiment would protect his wife in leaving
him, might become gracious and reasonable j and many a peevish
wife, knowing that her husband could honorably sunder the tie,
would soon change her manners.

Second. It is said that the fickle would separate for trifling
causes, and that unprincipled men, from love of change, would
take a new wife every Christmas, if they could legally rid
themselves in season of the old one. As the centripetal forces
in the material world are strong enough to hold matter to a
common center against all outside attractions, so, in the moral
world, the love of change is subordinate to the stronger love
of the familiar objects and conditions about them. All ex-


perience proves the truth of the historical maxim, "Mankind
are more disposed to suffer while evils are sufferable, than to
right themselves by abolishing the forms to which they have
been accustomed." This objection is based on the idea that
woman will always remain the helpless victim of every man
she meets. But a new type of womanhood is developing under
our free institutions, demanding higher conditions. Educated to
self-support, with a profitable place in the world of work, with land
under her feet and a shelter over her head, the political equal
of the man by her side, she will not clutch at every offer of
marriage, like a drowning man at the floating straw. Though
men should remain just what they are, the entire revolution in
woman's position, now begun, will force a new moral code in
social life. But the virtue and independence of women must
evolve a higher type of manhood, also.

Third. Some claim that the interests of children require an
indissoluble tie. It is a great blessing to be well born, to be
welcomed on the threshold of time, and to be reared in an
atmosphere of peace and love. No amount of care and educa
tion can ever compensate a child for the morbid conditions of
its organization, resulting from coldness, indifference, or disgust
in the parents for one another. Next to the misfortune of such
a birth, is the demoralizing influence on children trained in an
atmosphere of discord and dissatisfaction, such as a false mar
riage relation inevitably creates. One of the strongest reasons
for demanding the release of unhappy wives and husbands is
the evil effects on the children.

Fourth. Men and women, it is said, would not exercise the
deliberation they now do, if to marry ill were not considered a
crime, and the parties doomed to suffer a life-long penalty.
Nothing could be more reckless than what is done legally every
day, under the present system when to be seen merely walking
together may be taken as evidence in court of intent to marry,
and going through the ceremony in jest may seal the contract.
The fear of transient conditions would make the parties far
more careful in making their family arrangements. Women,
acting on the faith of a life-long relation, a permanent home,
are very apt to surrender all their earthly possessions into the
hands of husbands who spend their substance and then abandon
them to self-support. The theory of the indissoluble marriage
never was and never can be practicable, except for the best


organized men and women, in happy relations, and they are a
law to themselves. For others, legal divorces are far better
than discord or erratic relations outside of law. Impulsive
people, under the influence of strong passions, pay little atten
tion, in any circumstances, to laws or future consequences j and
very few know what the laws are, or the penalty for their

Fifth. It is said that the Bible is against divorce. When
those who are opposed to all reforms can find no other argu
ment, their last resort is the Bible. It has been interpreted to
favor intemperance, slavery, capital punishment, and the sub
jection of women ; and now, in the face of the most pronounced
declarations, and the example of " men after God's own heart "
and his chosen people for centuries, we are told that it condemns
divorce. The one form of marriage recognized in the Bible is
polygamy, both in the Old Testament and the New. It was at
a Jewish polygamous wedding that Jesus performed his first
miracle, and polygamy was practiced by Christians for centu
ries. It would be rather a difficult task for one thoroughly
versed in Scripture to prove the monogamic marriage and the
indissoluble tie by any fair interpretation of Hebrew or Greek

As the great majority of divorces are asked for by women,
release and divorce are of vital importance to them. No words
can describe the infinite outrages to which women are subject in
compulsory relations for which the law gives no redress. The
decisions of judges in many cases show that the subjection of
woman is the very essence of the law of marriage j and how
could it be otherwise when the contract and all the statutes
governing it have been made by one of the parties, while the
other has been profoundly ignorant of its provisions and speci
fications. How many women in this republic know anything
of the spirit or letter of the civil or canon law on this whole
question of marriage and divorce ? Not until they feel its iron
teeth in their own flesh do they awake to the helplessness of
their position. Thus far this vital question has been discussed
by man j he has spoken in Scripture, and he has spoken in law ;
from the beginning he has had the whole and sole regulation of
the matter. In all history, sacred and profane, woman has never
been recognized as an equal party to the contract. "Will the
remedy that Judge Davis proposes, a general law on the basis


of the code in South Carolina, bring new liberties to woman ?
No, no j in justice to the daughters of this republic there should
be no such final settlement of this question as a constitutional
amendment involves until woman has a direct voice in the
legislation of the country. For the past half century, those who
understand our system of jurisprudence have been constantly
protesting against the spirit and letter of the common law
of England on which our system is based, until many of the old
statutes so degrading and oppressive to married women have
been, one after another, swept away. Finding the marriage
relation theoretically a condition of slavery, and practically so
when tyrannical husbands chose to avail themselves of their
legal rights, women early began to ask release from their yoke
of bondage, and here and there humane legislators, roused with a
sense of woman's wrongs, began to open the door of escape
through liberal divorce laws. But at first it required great
courage and self-respect for wives, however miserable, in the
face of time-honored laws, religion, and public sentiment, to
avail themselves of these new privileges. Now, with higher
light and knowledge of the true marriage, and all the responsi
bilities that grow out of it, they begin to feel themselves more
degraded by remaining with unworthy and unloved partners
than by sundering the unholy ties that bind them in such unions.
When we appreciate the fact that the vast majority of appli
cations for divorce are made by women, that liberal divorce
laws for oppressed wives are what Canada was for Southern
slaves, it is clearly a work of supererogation for learned men
to demand " more stringent laws for women's protection ! "
protection, such as the eagle gives the lamb he carries to his
eyrie ! Alas, for the wrongs that woman has suffered under
the specious plea of protection !

If the marriage institution is of divine origin, we may safely
trust him who ordained it to see that " those whom he hath
joined together will never be put asunder." It is not necessary
to reenact the laws of God. Liberal divorce laws are intended
to enable those only whom God has not joined together to be
put asunder. Such laws, so far from being barbarous and de
grading, indicate the growing independence, intelligence, and
virtue of American womanhood. Our decreasing families, so far
from being an evidence of the dying out of maternal love, indi
cate a higher perception of the dignity and responsibility of


motherhood. With woman's keen sense of moral principles, she
begins to appreciate the awful waste of human force as she
contemplates the panorama of our social life : the unhappy in
mates of our jails and prisons, of our asylums for the insane,
the deaf, the dumb, the blind, the orphan and pauper, the innu
merable standing army of drunkards, the multitudes of children
whom nobody owns, and for whom nobody cares cold, hungry,
their feet in slippery places, sleeping at night in all our cities,
like rats, in any hole they can find. In view of these appalling
facts, the mothers of the race may well pause and put the question
to themselves, Is it for such as these we give the heyday of our
lives ? For such as these we ever and anon go down to the very
gates of death ? Is this a life-work worthy our highest ambi
tion, a religious duty for our best powers ? The answering echo
from every mountain-top is, No ! Above the thunders of Sinai,
a warning voice, loud and clear, rings through the centuries :
" The sins of the fathers shall be visited upon the children, to
the third and fourth generations."

Before claiming that marriage is a divine institution, before
binding women by further restrictive legislation, let the high-
priests at the family altars purify themselves, body and soul,
and make themselves fit to be the creators of immortal beings.
Science has vindicated the right to discuss freely whether our
ancestors were apes ; let it be as free to ask whether our pos
terity shall be idiots, knaves, and lunatics ; and if not, by what
changes such wretched results may be avoided. Judge Davis's pic
ture of the general upheaval in our social life, under liberal divorce
laws, is, indeed, a sad presentation of the possible future ; but a
change in the civil code will not destroy all natural affections. Is
family life with the mass of mankind so satisfactory that it calls
for no improvement ? Change is not death, neither is progress
destruction. We have shifted governments from despotisms, em
pires and monarchies, to republics, without giving up the idea
of national life ; and we Americans believe that greater peace
and prosperity are enjoyed in a republic than under any other
form of government. True, these changes from the lower to the
higher have involved hot debates, violence, and war ; but the free
institutions we enjoy more than compensate for the struggles
we have endured. We have changed the foundations of the
church, too, without destroying the religious sentiment in the
human soul. The dissensions in the church have filled the world


with despair for ages and deluged nations in blood; but the
right of individual conscience and judgment, against all au
thority, is the result. Though the cardinal points of our faith
have been changed again and again, yet we have a church still.
So we shall have the family, that great conservator of national
strength and morals, after the present restrictive divorce laws
are all swept from the statute-books. To establish a republican
form of government in the family must of necessity involve
discussion and division ; but more satisfactory relations will
be the result of the transition evils that we now see and deplore.
The same law of equality that has revolutionized the state and
the church is now reorganizing the home. The same process of
evolution that has given us a state without a king and a church
without a Pope, will give us a family without " a divinely or
dained head,' 7 in which the interests of father, mother, and child
will be equally represented.



OF what sort of ancestry do we boast ? What kind of blood-
mixture circulates in our veins ? Of what distant lands does it
bring us the reminiscence ? Of what migrations, what conflicts,
what miseries, what aspirations ? Who are we, that have been
made by the strife and tumult, the crash and collisions, of the
ages whose sounds have so long been silenced ? Let us glance
back over the ethnic chaos out of which we have emerged.

The first whispers of historic story tell us of men who dwelt in
caves. They had neither houses^ nor plows, nor horses, nor vessels,
nor metals, nor the products of the loom. They were found in
all parts of Europe by the first immigrants from Asia and
Africa. Penetrating the earth like miserable ants, says j^Eschy-
lus, these men concealed themselves in caverns without light.
Prometheus (that is the Greeks) brought them the plow, and
taught them to yoke the ox. The Cyclopes of Homer dwelt in
caverns on the summits of the high mountains. According to
Thucydides they occupied Sicily before the entrance of the
Iberian Sicanes. Diodorus Siculus places them in Crete. Pau-
sanias describes them in Sardinia. Vergil, in his sketch of
prehistoric Latium, pictures autochthonous inhabitants born of
the tough oak, living without laws, and ignorant of the arts of
civilization. These people did not belong to the Mediterranean
race. When Ulysses talked to Polyphemus about the Greek
gods, the giant knew nothing of them. The Cyclopes, then,
were not only not Greeks, they were not Indo-Europeans, for all
the Indo-Europeans worshiped Zeus-pitar. Grimm, on linguistic
grounds, predicated their affinity with the Finns. The Finns
have relations with the Mongoloids.

Indo-Europeans are known to have been in Europe as early
as 2000 B. c. Before this epoch two empires had been estab
lished by other invaders the Iberian in the south-west, and the
Pelasgian in the south-east. The Iberians entered by the



Pillars of Hercules. They came from Atlantis and northern
Africa, at the time when the Hamitic Berbers were gaining
possession. They overran the Spanish peninsula, founded cities,
built a navy, carried on commerce, extended their empire over
the countries that later were known as Gaul and Britain, held
Italy as Sicanes when Rome was founded, long before the sack
of Troy, and from Italy passed into Sicily as early as 2000 B. c.
Here they were disturbed by Pelasgians, while along the Med
iterranean shore Aryan Ligures penetrated to the Pyrenees and
beyond. By sea they were invaded by the Tyro-Carthaginians,
and after a naval battle, succumbed. By land they were tor
mented by the Ligures and Gauls. By 1000 B. c., the Phoeni
cians possessed the greater part of Spain. The Basques are the
only existing remnant of the Iberian people, and they are ex
tensively Gallicized. Their language, says "Whitney, possesses
some affinities with those of the American family, which is
ethnically Mongoloid ; but their cranial characters approach the
type of the Guanches and Berbers, which is Hamitic.

The Pelasgic Empire was at its meridian as early as 2500
B. c. This people came from the islands, of the JEgean, and more
remotely from Asia Minor. They were originally a branch of
the sunburnt Hamitic stock, that laid the basis of civilization
in Canaan and Mesopotamia, destined later to be Semitized.
Danaos and his daughters that is, the fugitive "Shepherds"
from Egypt sought refuge among their Hamitic kindred in the
Peloponnesus about 1700 B. c. Three hundred years before
this these Pelasgians had learned the art of weaving and agri
culture from Aryan immigrants. In time they occupied the
whole of Greece and Thessaly. Before 2000 B. c., they estab
lished themselves in Italy, and, after reverses and Aryan subju
gation, founded a later empire 992 to 974 B. c. known as
Etruscan, which extended north beyond the Po. Rome itself
was Pelasgian from the fourteenth century to 428 B. c. But in

Online LibraryNathaniel Hillyer. EglestonThe North American review (Volume 139) → online text (page 24 of 60)