A History of Matrimonial Institutions, Vol. 3 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 3 of 3
Howard, George Elliott
Families; Marriage -- History
In the United States, not less clearly than elsewhere in countries
of western civilization, marriage and the family are emerging
as purely social institutions. Liberated in large measure from
the cloud of mediæval tradition, their problems are seen to be
identical in kind with those which have everywhere concerned men
and women from the infancy of the human race. Accordingly, the
extension of the sphere of secular legislation practically to the
entire province of these institutions is a phenomenon of surpassing
interest. Consciously or unconsciously, it is a recognition of the
fact that matrimonial forms and family types are the products of
human experience, of human habits, and are therefore to be dealt
with by society according to human needs. In this regard the
Reformation marks the beginning of a social revolution. From the
days of Luther, however concealed in theological garb or forced
under theological sanctions, however opposed by reactionary dogma,
public opinion has more and more decidedly recognized the right of
the temporal lawmaker in this field. In the seventeenth century
the New England Puritan gave the state, in its assemblies and in
its courts, complete jurisdiction in questions of marriage and
divorce, to the entire exclusion of the ecclesiastical authority.
Even the Council of Trent, by adjusting the dogma regarding the
minister of the sacrament, had already left to Catholic states the
way open for the civil regulation of matrimony--a way, as already
seen, on which France did not hesitate to enter.[591] Later the
French Revolution wrested from the church judicial and legislative
authority in matrimonial law and administration, and placed it in
the hands of the state. In 1792, by a wise and tolerant enactment,
civil marriage and civil registration were established; but at the
same time the revolt against the old ecclesiastical régime led to
the sanction of free divorce. Absolute dissolution of wedlock was
then authorized at the mutual desire of both husband and wife, for
incompatibility of temper on the petition of either spouse, and for
seven other specified causes.[592] The natural result was a vast
number of decrees.[593] Accordingly, in 1803 the Code Napoléon,
while retaining civil marriage, adopted a more conservative policy
regarding divorce. Incompatibility was no longer recognized; mutual
consent was admitted under limitations; and the whole number of
specified causes was reduced to five. The divorce law of 1803 was
abrogated in 1816, and only restored in its essential features
in 1884; but the liberal policy of France, as expressed in the
Code Napoléon, has undoubtedly had a powerful influence in the
extension of civil marriage and divorce throughout Europe, where,
as in America, the modern statute-maker has recovered and passed
beyond the point gained by the Roman imperial constitutions between
Augustus and Justinian.
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