B. (Benjamin) Franklin.

Marriage and divorce in physical, psychical, moral, and social relations; according to the law natural and revealed online

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original status ! No doubt there are already gross vio-
lations of the marriage contract, while, in all probabil-
ity, many more such gross violations will arise. Cases
of extreme hardship arise under these violations. It
■is even possible that all the burdens of matrimony
may remain, great personal wrongs, even cruelty in-
flicted, while the comforts are all destroyed and the
rights reduced to a minimum. What shall be done in
such cases ? Shall the woman be left to the cruel
tender mercies of a wicked husband, who has become
worse than a brute ? Shall the man have no deliver-
ance from a woman who makes his house homeless,
and subjects his body to suffering and his soul to woe ?
It is not necessary to enter into details. Granting the
worst, what can be done when cases practically arise ?
The answer is easy enough, if one-sided individualisni
only be acted upon. Break the marriage ! The con-
tract has been already broken, let the mutual relation
cease, remand the parties to their original personal in-
dependence !

But this cannot be done. The natural fact of the
" one flesh," like all facts, is indestructible. It remains
with all its consequences. The parties cannot go back
to personal independence of each other. So long as
both live their mutual relation remains. Should they
meet, that relation would be felt. Should they be
widely separated, that mutual relation will be remem-
bered. They are no longer divided like separate in-
dividuals. Death only, by removing one party to an-
other sphere, makes the separa,tion complete. Hence
the principle of individualism is not broad enough to



128 MARRIAGE AND DIVORCE.

cover the case, in its essence and inevitable conse-
quences. If that principle alone be regarded, any laws
of marriage founded upon it solely will be in constant
conflict with other principles, which nature will vindi-
cate inexorably ; while " The Power " behind nature
will support her with stern consistency.

Marriage is not only a relation between persons, and
so a mutual contract ; it is also a relation toward society
and the state, and therefore both a social and a civil
contract. Society has rights which all married persons
are bound to respect. Society rests back upon the
family, and marriage only makes the family. Society
has the right of self-preservation ; and so great is this
right, that persons may be, indeed often must be, sacri-
ficed for its preservation. Individualism must subserve
socialism, because the latter is paramount. Both are
principles ; but when they actually conflict, the lesser
has evidently transcended its scope, and must yield to
the greater. However parties to the mutual contract
of marriage Suffer, they have no right to escape by
breaking up the foundations or even shaking the walls
of society. Moreover, government, which is the or-
ganism of society, has supreme authority over the so-
cial constituents. It must above all things protect,
defend, and promote the integrity and consequent per-
manence of families. It may, and should, to the ex-
tent of its power, enforce the mutual contract of mar-
riage ; but unfortunately its power in this direction is
very limited. It should redress all public wrongs, but
many private wrongs it cannot reach. If society and
government attempt to redress private wrongs upon
the principle of individualism, if they annul marriages



DIVORCE. 129

merely to allay personal evils they become simply
suicidal ; they strike at foundations of their own stabil-
ity ; they " sow the wind."

The applications of these general principles need
not now and here be followed out. They belong to
the practical work of those who instruct public opin-
ion, and direct its expression, and of those who make
or execute civil law. It is enough here to point out
and call attention to the principles involved. At the
risk of needless repetition, it may be again noted that
two principles are involved, both of which are true,
but both also relative, and therefore limited. Individ-
ualism, or personal freedom, is as truly a human right-
ful heritage as is socialism, or the existence in free
development of society. The former is the lesser
principle, its limits allow not infringement on the
greater. Society may not only ask, but demand, even
through government enforce, individual sacrifices of
possessions, comfort, peace, or even life, for the gen-
eral good, and much more for the preservation of its
own existence. There should be no wavering in car-
rying out these principles. Sympathy for persons
who are aggrieved or sorely wronged, however legiti-
mate, indeed praiseworthy, as a private feeling, should
not be permitted to influence judges, bias legislators,
nor turn aside executive administration. The utmost
measure of private injury is a small evil, compared with
the steady operation of the principle, that the family
must be preserved for the sake of permanent social or-
der. Only when it is impossible to preserve the fam-
ily should public opinion allow, or the state permit,
divorce.



13° MARRIAGE AND DIVORCE.

Thus far both nature and revelation are at agree-
ment. The conclusions arrived at commend them-
selves to social philosophers upon grounds of " natural
reason," as well as to the mind and conscience of
Christian believers, upon the ground of duty to God,
who is Lord of all the kingdoms of the earth.

Marriage, however, reaches beyond the bounds, and
is touched by other principles than those of mutual
and civil contracts. It is a relation" cognized by reve-
lation. From the first it appears therein as closely
connected with the whole economy of salvation. It is
both germinally set forth, and its full development
is treated of in that revelation. In the developed and
as yet final revelation of Jesus Christ, perfected by the
inspiration of the Holy Ghost, we find nothing indeed
to conflict with the mutual and civil contract in mar-
riage, but we find a very marked supplement and ad-
dition thereto. The duties of married persons toward
each other are enforced with holy sanctions in the
Gospel, while their paramount duty and subjection to
the state is not diminished ; but it is further shown
that marriage is a mystery, and like all mysteries, is
intended both to promote the glory of God, and to
advance the salvation of mankind. Religious rites,
indeed, were connected with the ceremony of marriage
even among the heathen; but Christianity has at-
tached to its rites of matrimony a peculiar significance
with accompanying grace. Although no form for cele-
brating marriage has been set forth by revelation, and
though it cannot, therefore, rank with the two sacra-
ments instituted by Christ, yet, as it is a specific cere-
mony, instituted by the Church — which is Christ's



DIVORCE. 131

Body — for one definite purpose, it calls down a blessing
of grace from Him Who promised to be with His
church to the end of the world, upon all who, before
the altar, enter into matrimony, " not unadvisedly or
lightly, but reverently, discreetly, advisedly, soberly,
and in the fear of God." Marriage is thus enacted be-
fore God, and the parties go forth into the ordinary
walks of life to fulfil all natural duties toward each
other, personally, and toward society and the state as
a constituted family ; but they have come also into a
new association which is symbolic of the union between
Christ and His church. A deepened solemnity is
given to their union with one another, which is not
discordant with its natural sweetness; while an ex-
alted glory is added to it which tends to sanctify each
to the other, through belief that the Lord has wit-
nessed and blessed their union. Henceforth the nat-
ural duty of living, not for self, but for each other —
which constitutes the one rule of domestic happiness
or peace — is sanctioned and exalted by the Christian
duty of making the relation conform to that of the
union of Christ with His church.

Thus Christianity throws all the weight of its in-
struction, cemented by its means of grace, into the
scale of social order, by helping to constitute families
upon the soundest natural principles, and to preserve
them by strongest bands of love and purity. It does
more indeed, but it herein shows itself a powerful ally
to society and the state, as well as a tender and true
promoter of all domestic virtues, with consequent per-
sonal good. It furthers also the glory of God ; for, in
every solemn sanction of matrimony it bears open



132 MARRIAGE AND DIVORCE.

witness that " God is love," and that He careth not
only for the personal happiness of His creatures,.but for
the order, stability, and security of society and the state.

In view of these three — distinct, but harmonious,
indeed co-operative — aspects of matrimony, the subject
of divorce should be considered. How shall divorce
be treated, first, in reference to the mutual contract ;
second, in respect to the social and civil contract ; and
third, in view of the holy mystery ?

I. The principles of the mutual contract in marriage
have been sufficiently set forth. Between the parties
all the duties of that contract are binding upon the
conscience. Having entered into it, they owe to each
other all due benevolence, and should perform eveiy
necessary act of beneficence. The relation is not only
physical, but involves the whole person. Each person
owes to the other such self-sacrifice, that they should
look — first and constantly — not on their own but on
the other's good. They become joined, through mar-
riage, in a physical union which is life-long. They
become so united psychically, that they are, in more
than a figurative sense, of one heart and one soul.

Yet this mutual contract has been broken, and may
in any instance be broken. Adultery breaks it. When
a woman is guilty of adultery she dissolves both the
physical and the psychical union. She introduces
alien blood, destroys the unity of the family, and coun-
teracts the whole end of the mutual marriage contract.
She also wounds irrevocably the heart of her husband,
destroys his honor, embitters his soul, shatters his
hopes, and ruins his peace. If they have children they
suffer, in like manner, psychically with the father.



DIVORCE. 133

Although the man cannot injure the woman physi-
cally, as she can him, yet psychically he can do her
equal wrong. Hence the adultery of the woman
breaks the marriage, and causes natural divorce, which
sets the husband free from " the bonds of marriage,"
If marriage were a mutual contract only, the wronged
husband would have a full right to put away his wife
and marry another. But as it is more than a mutual
contract, his right of divorce is not peremptory. His
private right is limited by his social relations. This
point will be considered under the next head. Natu-
ral law and the Word of God are at agreement in re-
spect to these marital rights.

The rights of the woman are not the same. The
adultery of her husband may cut her to the soul, but
it does not corrupt nor confuse her blood. He breaks
the psychical bands of their union ; but he does not
break — simply indeed because he cannot — the physical
union of marriage. Even psychically the effects differ,
if not in kind, at least in intensity. Naturally the
wronged husband feels that only the shed blood both
of wife and paramour can repair his wrong ; while the
woman at most feels a murderous jealousy toward
her rival, but does not spontaneously refuse to take
back her husband. The moral, or even social, charac-
ter of these feelings are not now considered. They
are mentioned only to show natural impulses, founded
upon natural difference in the cited cases, and thus to
elucidate natural law. The bearing of higher laws
upon these cases will come up under both of the fol-
lowing heads.

The verdict of natural law, therefore, plainly is, that



134 MARRIAGE AND DIVORCE.

the wronged husband must separate from his adulter-
ous wife ; or else involve himself in a cumulative con-
fusion of blood, wherein he himself becomes guilty.
No doubt this is the natural ground of the English
law, which denies divorce to a man who has condoned
his wife's unfaithfulness : he has thereby become par-
taker of her guilt, and no remedy can reach him.
These may be " hard lines," but they are the common
lines of inexorable nature. Whoever would not be
burned must avoid fire. The further verdict of nat-
ural law, as plain as the former, is that the wronged
wife need not separate from her guilty husband. She
may do so because of his cruel, and perhaps irrepara-
ble, wrong to her heart and soul ; but, since he has not
confused her blood, she violates no physical law in ad-
hering to him.

In respect to lesser violations of the mutual contract
of marriage, absolute divorce is no natural remedy.
These violations are sometimes terrible — so much so,
indeed, as to make living together intolerable. Gross
habits, e.g., habitual drunkenness, shocking indecency,
madness of ungoverned temper, felonious pursuits,
continued virulence in word and act, violent assaults,
threatenings against life. But these are individual
wrongs ; they do not touch purity of blood, and there-
fore cannot be repaired by divorce. Nature sanctions
separation between the parties for these causes, and
imposes penalties upon the wrong-doer ; but only to
allay evils. The wronged party cannot perform all
the duties of the contract, and is so far exempted ; but
the union must remain for life.

Mere humanitarianism sanctions this hard natural



DIVORCE. 13s

law, because it is the best that is practicable. How-
ever individuals may suffer under it, upon the whole
it promotes the general good. The revealed law of
God allows divorce for adultery only ; and accords, in
every specification, with the natural differences be-
tween the man and the woman. In fact, the Old Tes-
tament treats exclusively of physical adultery, while
the New does the same in every case but one, and
there the possibility of psychical adultery turns upon
the translation of the Greek particle eV (S. Mark x.
1 1). The conclusion, drawn from all sources, is that
the wronged husband should be divorced, and that the
wronged wife may be.

II. The marriage contract is not only mutual, but
social and civil also. The individual rights under a
simple contract are not destroyed, indeed, but merged
in the higher contract. Not only the persons but so-
ciety become involved in the contract, which reaches
out to all social organizations — eminently to the state
or governmental organization. The state may make
marriage laws, while society at large may enact mar-
riage customs. These laws and customs are binding
upon both parties in marriage, because, in entering the
mutual contract, they have also involved themselves
in a social and civil contract. They have in fact made
a family, placed themselves in the foundation on which
civilization is built, and hence assumed all the respon-
sibilities of their position. They may not now break
the marriage contract at will, because they cannot slip
out from society, and leave it as they found it. Such
a break would weaken the whole social structure, and
endanger whatever is built upon or into it. Half the



136 MARRIAGE AND DIVORCE.

social mischiefs of allowed divorces, and perhaps all
the civil laws that make divorce easy, arise from pay-
ing too nearly exclusive regard to the mutuality of
the contract. While society should duly consider in-
dividual rights and wrongs in the mutual contract of
marriage, and while government should make laws
that would defend individuals under that contract;
both must, for the sake of their own preservation, be
careful not to impair the integrity of the family, and
especially not to break it up so long as it is not abso-
lutely broken by the one irreparable wrong.

Those who inform and guide public opinion, as well
as legislators who make laws, will undoubtedly find
it difficult to adjust individual rights within social
and civil obligations, in all cases of application for di-
vorce. Still it will be always dangerous, and often
fatal, to pay exclusive regard either to the one or the
other. This relativity being premised, and its force
acknowledged, the practical questions may be faced
and determined.

A few of those cases may properly be considered
here, as illustrations of the above argument, e.g. : In
case of desertion, by either wife or husband, both the
mutual and social or civil contracts are violated. Shall
the innocent party be debarred from the amenities,
the comforts, and the advantages of marriage, because
of the wilful wrong of the other ? May desertion be
taken as a sufficient ground of divorce ? If the mu-
tual contract only be regarded, the answer would be
affirmative ; actual and permanent desertion is such a
violation of the contract that the innocent party is
thereby set free, he or she ought to be divorced with



DIVORCE. 137

the right to marry again. But who is to determine
which is the innocent party : the deserter may have
been driven away ? Hence the general right to be di-
vorced would not cover every case, and should not
cover any until the entire innocence of the injured
party after full investigation be fully established. A
general law, making simple desertion a ground of di-
vorce, would therefore be impracticable, even if the
mutuality of the contract were alone regarded.

Does desertion so break up the family that society
may allow and government legalize divorce, without
shattering a foundation stone of social order? Not
necessarily, because the deserted one may keep the
members of the family together and thus maintain the
family position in the social order; there will be a
flaw indeed in the foundation stone, but not utter dis-
integration nor necessary displacement.

The relation of two separated parties, if viewed only
physically, becomes like the relation of the living to
the dead; there would not be confusion of blood in
case of another marriage, at least none which physi-
ology, as at present known, can detect. Psychically,
however, desertion cannot be so complete as to utterly
destroy the mutual contract of marriage, much less the
social or civil contract. The parties, if they never see
each other, cannot escape the knowledge that some-
where one exists who is part of the other ; while, if
they meet, it will be with the consciousness that the
barriers between them have been broken down. Such
personal, social, and civil disasters are liable to follow
after desertion, that the moral sense of society is
against allowing divorce for desertion, while the gov-



138 MARRIAGE AND DIVORCE.

ernment that allows it runs the risk of a suicidal
act.

Are intemperance, or disgusting grossness, or abso-
lute neglect, or evil temper, habitually manifest in vile
words or cruel acts, or dangerous violence, sufficient
grounds for divorce ? Yes, if marriage be only a mu-
tual contract, between merely independent parties who
could return to their independence ; but rather, No I
because the personal unity consummated by marriage
is not destroyed by these causes ; nor is the family
demolished. The common social sentiment sanctions
separation in such cases ; and government may legally
grant it, with wise safeguards and compensations to
the injured party, as well as penalties against the
wrong-doer. Divorce, however, for such causes would
imperil the social fabric, as well as involve risks to pri-
vate and public purity.

Does conviction of felony break the bond of mar-
riage ? It would no doubt be very hard for an inno-
cent, pure-minded, and even religious, man or woman
to be bound in marriage, through life, perhaps a long
life, to one who is in prison and liable to remain there
either continuously or by renewed committals. The
felony, being wilful, becomes in effect a voluntary
breaking of the mutual marriage contract. The other
party, so far as the binding force of such contract alone
extends, is set free. Both, however, still remain in liv-
ing oneness of flesh. Death only can dissolve that.
There would, however, not be — as far as physiology can
now show — in another marriage with another party,
any " confusion of blood." In respect to the civil con-
tract the felon has not only forfeited his right to civil



DIVORCE. 139

privileges, but by his crime has rendered himself in-
capable of maintaining his family, and of keeping it in
due order as a social constituent. Society and the
state have a fundamental right which he has violated.
It is for their interests, to remove from their own foun-
dation the family which he has desecrated and, as far
as he could, destroyed. Hence society may respect
and government authorize divorce, with privilege of
remarriage, to a felon's consort. These conclusions are
arrived at under natural law.

Under the revealed Law of God felony is not men-
tioned in connection with marriage. The right of
human government to punish felony is however dis-
tinctly afifirmed, indeed Divinely granted, in express
terms of revelation. Government, as a Divine insti-
tution, should therefore regard something higher than
natural law. Its statutes — whether penal or beneficent
— should conform to revealed law.

In the Old Testament great liberty of divorce was
granted, but not to both parties. The man might put
away his wife, by merely giving her a writing of di-
vorcement (Deut. xxiv. i). The woman, however, re-
ceived no such privilege. She even could not return
to her former husband, if the next died or divorced
her (4). This Mosaic legal privilege was, however,
against the natural law of marriage, which was insti-
tuted at the beginning. Our Lord says (S. Matt. xix.
8) " Moses because of the hardness of your hearts suf-
fered you to put away your wives ; but from the be-
ginning it was not so."

[It may be observed here, in passing, that Moses, as
a divinely authorized legislator, did permit divorce ;



I40 MARRIAGE AND DIVORCE.

he did it under pressure, indeed, and expediency was
his evident motive. The principle of expediency was
therefore recognized in the Jewish Theocracy. This
opens the question — ' May human governments now
act upon expediency ; may they grant privileges, which
are not strictly right or best, in order to avoid greater
wrong or injury liable to arise from denying them ?' —
It is not easy to answer this question. If it be an-
swered affirmatively, then human governments may
grant divorces for felony, desertion, intemperance,
cruelty, or even for irreconcilable incompatibility of
temper ; because it seems inexpedient to keep within
the marriage bond such persons as have become hope-
lessly estranged. Indeed, if expediency be accepted as
a principle of government, there could hardly any limit
at all be set to divorces. They who claim that govern-
ment has the right to act upon this principle must
rely chiefly upon natural reason for support ; for it
would hardly be claimed that what Moses allowed to
the Israelites might with equal liberty be allowed to
modern nations, relatively so much further advanced
in civilization and enlightenment. Moreover, the Isra-
elites were not exempted from the personal and social
evils of free divorce ; nor would any modern people
escape them. If society should recognize and govern-
ment authorize free divorce, it would undoubtedly
find very inexpedient results. In attempting to relieve
specific cases of hardship, it would shatter the very
family principle itself ; and thus break up the social
foundation.]

Returning now to the regular course of our investiga-
tion, we find only one point remaining, and that point



DIVORCE. 141

is divorce for adultery. We have seen, under natural
law, how adultery destroys the family. That makes
sufficient reason why society, under the instinct of self-
preservation, sanctions divorce for this cause ; and why
government, under the same instinct, authorizes it.
Under the revealed law it is expressly authorized.
The highest expression of that law is found in the
words of our Lord Jesus Christ. They are recorded
by the first three of the Evangelists, while the same
law is enunciated by S. Paul. The New Testament,
therefore, recognizes the fact that adultery is a suf-
ficient ground of divorce. Hence society and human
government have the sanction of our Lord and of the
Holy Ghost, for countenancing and authorizing di-
vorce on account of adultery. The passages them-
selves will be reviewed separately under our next gen-
eral division of this part of our subject.

IIL In view of the holy mystery of marriage, how


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Online LibraryB. (Benjamin) FranklinMarriage and divorce in physical, psychical, moral, and social relations; according to the law natural and revealed → online text (page 10 of 15)