The Home of American Intellectual Conservatism — First Principles

August 15, 2018

The Nineteenth Century and the Rise of the Atomistic Family (part 2)
Carle C. Zimmerman - 03/02/08

excerpted from Family and Civilization, originally published in 1947 and recently reissued in a critical edition, edited by James Kurth, in ISI Books’ Background series

Nineteenth-Century Divorce

Divorce has had an interesting history. In trustee family times, breaking of marriage is accomplished primarily by family repudiation for childlessness, adultery, or some serious crime against the family. To protect the wife, the cognates, her relatives, are called into the family court or governing body to help decide the matter. Unfairness to the woman has led to some of the most serious of private family wars or feuds. (A man is responsible to his wife’s as well as to his own family.)

In domestic family times divorce is generally permitted, but is looked down upon. An indication of this is found in the fact that it was not until after World War I that dramas given in the United States forewent their previous moralizing insinuations regarding the evils of divorce. D. N. Koster, a historian of the American theater, has noted,

With the shift, after the War, in public attitude on divorce toward a position of greater tolerance and a tendency to regard marriage and divorce more from the point of view of the individual’s happiness and less from the social institutional point of view, came a corresponding change on the part of the American dramatists. No longer was there so much moralizing about divorce; instead there was a noticeable tendency to the acceptance of it as an integral part of American life, and a consequent study of its effect upon individuals. (Koster, The Theme of Divorce in American Drama 1871–1939, Philadelphia, 1942, 107–8)

In our medieval period divorce was allowed only from bed and board, or by nullification on the theory that no marriage existed. There were various devices whereby a person could take church orders and—since chastity was a higher state than marriage—achieve some voidance of previous nuptial arrangements. This was particularly true if it could be shown that marriage, which was sometimes considered to begin with engagement (sponsalia), had not been completed by copula carnalis. But the Reformation and the seventeenth- and eighteenth-century philosophy (both in jurisprudence and in general theories of society) favored absolute divorce. The contractual theory of the family as a limited agreement for a specific purpose gained headway. The nineteenth century was one in which absolute divorce became not only possible but permissible in practically all Western countries. Its popularity grew rapidly.

Divorce is a phenomenon which flourishes in certain specific conditions. These are found in new countries, among mixed populations upset by revolutions, wars, and other factors destructive to tradition and family relationships. Naturally, in the Americas (particularly among the Protestant groups in North America), among the Protestant groups in Europe, and during the revolutionary and war periods, this idea of divorce has had its widest influence and popularity.

For instance, France, a Catholic country, had an extreme surge of divorce in the Revolutionary period of 1789. Dozens of pamphlets were circulated attacking the family. After the dictatorship of Napoleon, pamphlets of the opposite type began to appear, and the writings of de Bonald and other Catholic leaders began to gain headway. In 1816, divorce was abolished. Then after the minor revolution of 1831, pamphlets attacking the family and advocating the renewal of permissible divorce legislation gained great circulation. But nothing was really done to permit divorce again until 1884.

This familiar pattern of divorce indicates that it is an aspect of the growth of individualism and “rationalism” in society. Marriage no longer guided by families or carefully supervised from its inception by community and religious leaders (proprius parochus) yielded an increasingly greater proportion of failures. The family was breaking violently from its former conception of status and sacrament, under the newer conception of a contractual and secular act. Divorce became a “solution” for families already broken, from families often established without proper foresight in the first place.

Rise of “Causeless” Divorce

At the same time that these other changes came about in divorce, the theory of “cause” in divorce changed from objective to subjective factors, from major to minor reasons, and from what may be called fundamental breach of marriage bonds to purely personal grounds. This may be considered such a radical change in the concept of cause as to speak of it as a change from a cause divorce to a causeless one. Not all divorces now are causeless, but the possibility of securing divorce without fundamental violation of family integrity and purposes has become a potent factor. This is an accompaniment of the purely romantic conception of love, and the theory that marriage exists primarily for the partners and secondarily, if at all, for the bearing of children.

This difference in the conception of divorce is difficult to explain and is associated with no particular type of divorce form. In later Greece when it became the accepted thing for the individual to keep a mistress (or worse) as well as a secluded wife, relations with the extramarital object of love could be purely transitory and dropped without formal reason. This idea began to spread within the household and the real marriage assumed a great deal of this causelessness. (One could dispose of a marriage as one disposed of a mistress.) In Rome, it could be measured by the difference between the breaking up of the dignitas marriage as contrasted to the severance of a second-class, or concubinatus, marriage. In modern society, both marriage and divorce go through the same public channels—the altar and the courts—but there has been increasing use of causeless divorce.

This point is raised purely to point out the developing conception of the atomistic family. Where the union is strong, petty annoyances are lived down, but major violations generally lead to a separation. Where the union is weak, major factors (disloyalty, nonsupport, absence, childlessness) are often overlooked, but the person has less capacity to endure the petty annoyances inherent in the attempt by two persons to live in as close a relationship as is involved in marriage.

Consequently, a study of the alleged “causes” for divorce no longer has great significance. They are merely forms used to satisfy the public temper. The real inner reason is that families now have to be held together more through the efforts of those personally involved than through the pressure of society. There are no longer numerous children to complicate divorce. Increase in economic opportunities for women has made their situation, in case of a separation, much less difficult from that point of view. Our whole social organization is geared to a situation where causeless divorce is easy and is becoming the modal type.

The old statement that “divorce is merely a remedy for a family situation already broken” is truer in some respects than we have realized. Causeless divorce is common practice in any society where social organization is geared to the individual and to atomistic familism. It is seized upon as a remedy by people whose personalities jar upon each other, when religious belief, legislation, and the pressure of parenthood are not great enough influences to hold the marriage together.

In our society, causeless divorce is most popular among those classes and types of people who would have used the secondary Roman marriage form or who, in Greece, would have used extrafamily relationships for sexual and personal satisfaction. (See Demosthenes, Against Neaera.) Its inclusion in the same legal system as the cause-divorce and the dignitas marriage in modern society has had considerable influence upon the difficulty of maintaining the dignitas marriage, particularly in the United States.

Nullilfication of Manus and Potestas in Nineteenth-Century America

As has been pointed out repeatedly, times exist when there is little or no written law on the family. Such was true for early Rome, Greece (and we might add India, Egypt, China, Southeastern Asia), and the Middle Ages of our culture, particularly among the barbarians. This does not mean that there is not some mention of the family in the written or unwritten codes which dominate these times.

The Code of Hammurabi, the Zend-Avesta, the Vedic Hymns, the sagas collected by Confucius, the Ramayana and Mahabharata of Southeastern Asia, the Old Testament, the Talmud, the Koran, and the laws of Solon, the Twelve Tables, the sagas of the Anglo-Saxons, the barbarian codes of the Slavs, Germans, English, the Iliad and the Odyssey, all mention the family, and some delimit it in detail, not only from birth to the grave but from the birth of the alleged founder of the family to the hypothetical grave of its last survivor. However, these writings are minuscule when contrasted with a Roman law text on the family or the numerous volumes attempting to summarize and categorize our present family law solely in the United States.

But in those times and places where there seems to be no family law, there is an unwritten and minutely detailed law that controls the families. This has been pointed out from time to time in the discussions of family courts or assemblies, transaction, cojuration, composition, amend, wergild, and so forth. The point discussed here is the attempt in nineteenth-century America to nullify family law by the adoption of omnibus divorce clauses and feme sole conceptions as the American law for families in the nineteenth century. This represents the abolition during nonrevolutionary times and for all families (not only those who adopt a lesser form like concubinatus) of manus and patria potestas. Manus (mutual power of husband and wife) and patria potestas (mutual power of parent and child) are the key forms of power upon which the entire rights and duties of familism depend. Manus and potestas are the keystones in the arch of domestic society, the essential nut-locks in the machine which must hold the family together.

Manus and patria potestas are fundamentally rights which go together. Mutual right of husband and wife is so intermingled with mutual right of parent and child that a movement toward dissolution of manus automatically dissolves patria potestas, either in theory or capacity. In a situation where coverture exists to the extent that the domicile of the husband is the domicile of the wife and vice versa, the children, the parents, the husband and wife are in constant companionship and amenable to common periods of consultation, advice, admonition, and help. Where the domicile is different, whatever patria potestas exists is impossible to apply because one parent or the other is absent from the children most of the time. The same applies to the conception of the wife as a feme sole in relation to her property. Patria potestas (or the mutual right and control of the parent over the children and the expectations of the children from the parent) depends largely upon the right of the parent over property. For instance, if a child wants permission from a parent to do something involving an expenditure of money, the power of the parent to facilitate the matter (if it is a wise action) or to hinder it (if unwise) depends upon whether that parent has a positive or a negative right in decisions regarding the family property from which the income must come. If a child wishes to purchase a gun, the father has no restraining power if the child can get the money from the mother, and the mother has no restraining power if it can be purchased from a separate property fund rather than from a family fund. Neither has any facilitation power if the money is controlled by one rather than by both, that is, as mutual family property.

This is a purely hypothetical case, which could be ironed out by agreement between the parents who realize that no matter what the law they must act in unison. The point under discussion here is the decline of manus and potestas as family powers with actions seeking to split or break manus as far as property is concerned. Factually, of course, laws abrogating manus are passed in periods of growing childlessness and inspired by people who have no intention of having children, so these points do not come into consideration. Furthermore, as pointed out above, no matter what the law, the parent has to do what he or she can to hold the family together and make it function.

Nevertheless, from about 1820 until the reaction after our Civil War, manus and potestas were destroyed as legal powers in the United States through what are known in law as the “married women’s acts,” the feme sole movement, and the accompanying “omnibus divorce clauses,” which were passed in the various divorce-mill states. Our Civil War, which decided that freedom did not mean the right of states to withdraw from the Union, also established psychologically in the United States the conception that freedom in the family did not mean the abolition of manus and potestas, or the complete abnegation of baron and feme and coverture.

Now let us see what these specific acts were, which led to the intentional or unintentional inroads into manus and potestas.

In 1821 the legislature of Maine had authorized the wife, when deserted by her husband, to sue, make contracts, and convey real estate as if unmarried, prescribing the mode of procedure in such cases. A like law previously existed in Massachusetts. These appear to have been the earliest of the married women’s acts, properly so called: the first-fruits of the modern agitation on women’s rights. The example was soon followed elsewhere. New Hampshire, Vermont, Tennessee, Kentucky and Michigan all passed important laws of a similar character before 1850. The independence of married women whose husbands were convicts, runaways, and profligates thus became the first point gained in the new system. . . . The right of a married woman to dispose of her property by will was legalized in Illinois, Pennsylvania, Michigan and Connecticut about [1845]. . . . In Connecticut, Ohio, Indiana and Missouri, the first reforms appear to have been directed towards exempting the wife’s property from liability for her husband’s debts, rather than giving her complete dominion over it. [But] the year 1848 saw a wondrous revolution effected in the foremost states of this Union as to the property rights of married women; and this revolution has since extended to every section of the country. . . . [The New York law of 1848] provided that the real and personal property of any female already married, or who may hereafter marry, which she shall own at the time of marriage, and the rents, issues, and profits thereof, shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property as if she were a single female; and that any married female may lawfully receive and hold property in like manner from any person other than her husband, whether by gift, grant, devise or bequest. This statute, passed at such a time by the foremost State . . . could not fail to make a deep national impression. . . . From this time forth, the revolution became rapid. . . . (James Schouler, Law of Husband and Wife, Boston, 1882, 251–55 et passim)

The influence of this legislation strikes fundamentally at the powers between husband and wife and parent and child. Disregarding the fact that by then the propertied classes in the United States were childless or had extremely small families, this general change in family doctrine had developed and has expanded since then, as far as legislation is concerned. Lazy Husband laws, penalizing family deserters; the privilege of women to bring civil suits for alienation of affection and for criminal conversation; permission for wives to sue in their own names in the case of torts or civil damages of a noncontractual nature; the abolition of the doctrine that a woman committing a crime in the presence of her husband is supposed to act by his coercion; the proposed system whereby husband and wife can sue each other without breaking up the marriage; permission for husband-wife suits in matters of tort; the proposed system whereby child may sue parent and vice versa; all these and many more acts indicate the steady fragmentation of any legal meaning to manus and patria potestas.

Justice Thornton, in 1872, recognized this as follows:

The ancient landmarks are gone. The maxims and authorities and adjudications of the past have faded away. The foundations hitherto deemed so essential for the preservation of the nuptial contract and the maintainence of the marriage relation, are crumbling. The unity of husband and wife has been severed. . . . (Martin v. Robson)

Vernier, in his American Family Laws, holds that the movement was to remove the wife’s common-law disabilities and to equalize the rights of husband and wife. Then he gives another reason—to equalize the burdens between spouses. Most of this, like most of life, is merely sentimental rationalization. Under coverture man and woman were in the same boat together. Then the woman was legally freed, so the husband had to be freed; they were again equal, but there was no family left under the law. Most of this hastily conceived family legislation, which few read and fewer still paid attention to, was made for and by people who do not have or do not desire to have families, but merely want a secondary form of marriage, which the honest Romans arranged for in their concubinatus.

Nullification of Many Legal Aspects of the Marriage Contract

Not only in the field of manus and potestas were revolutionary changes in marriage worked out in the nineteenth century. The nature and obligations of the marriage contract were also drastically changed. In America this was more than a matter of making absolute divorce available to the people. Through law and procedure the marriage contract lost most of its legal meaning and fell back for its chief support upon the intentions and the unsupported ability of people to get along together. Legal rules holding the family intact were so relaxed that escape was very easy. Consequently, foresight and precautions concerning entrance to marriage were relaxed; those who married had no particular legal reason to make great sacrifices to make the union a success.

Ordinarily, even in atomistic periods when the individual is comparatively free from family domination, the public—the family, the state, or the church—maintains considerable interest in the continuity of the marriage relation and insists that, if possible, unusual sacrifices be made by the individual to maintain this relation. The major revolution in the family in nineteenth-century America shattered this idea. The movements were of three types—omnibus divorce clauses in the legislation; development of divorce-mills, or states of quick and easy divorce; and the conception of validity of divorce in jurisdictions different from that of the residence, the property, the children, and the partner being sued. These developments culminated eventually in the official withdrawal of effective public interest in the family, except that exerted through the pressure of public opinion. A fourth change was the development of the idea of marriage removed from the jurisdiction of domicile. Easy divorce and easy marriage go together. At the Council of Trent the church made a great deal of proprius parochus. This was the idea that, as far as possible, marriages were to be made in the parish of domicile so that judgment of the families and the local clergy would have some influence upon the marriage. At that time marriage, even among the Protestants, was factually unbreakable. Now that manus and potestas, as well as the marriage contract, have lost most of their legal sanction, the why and wherefore of entering marriage is naturally given less public consideration.

The omnibus divorce clause and the divorce-mill states have an interesting history. Beginning about 1820 and going out of the legislations about 1880, a series of states passed laws which permitted judicial divorce in the local courts and, after specifying reasons, added statements in intent as follows:

[And divorce may be granted] for any other reason which the court
shall deem necessary.

This was a radical change in legislation regarding the family. As a matter of fact, outside of the divorce by mutual agreement permitted under the French Revolution for a few years after 1792, this was the greatest relaxation of official concern in the marriage bond since the Roman matrons of the higher classes openly registered themselves in the stuprum lists in order to escape the economic consequences of loss of property, under the law Julia de adulteriis, for adultery.

Actually, this was the most radical change ever to occur in the entire history of barbarian, Anglo-Saxon common law regarding the family. The church had considered marriage a holy sacrament, a heavenly thing. Anglo-Saxon and common law had considered marriage a political and social status, a thing of natural right.

Justice Story in his Conflict of Laws held that:

Marriage is not a mere contract between the parties, subject, as to its continuance, dissolution and effects, to their mere pleasure and intentions. But it is treated as a civil institution, the most interesting and important in its nature of any in society. (Par. 200)

But omnibus divorce clauses, legislated by Indiana, Illinois, Connecticut, Washington, Maine, Utah, Louisiana, and other states, left discretion in divorce to the judge. He, being an uninformed official in a divorce-mill state, or region, or court, could and did do just as he chose. In other words, he satisfied the client who hired the lawyer.

However, these statements must now be qualified. In our country, following ancient Anglo-Saxon precedent, judges also make laws. The legislatures pass many resolutions; the judges subject them to discussion and, through the various court processes, decide whether the matter is law and, if so, what kind of law. This is a familiar process in the field of the family. For instance, canon law doctors in the Middle Ages argued for three hundred years about whether marriage began with the engagement (verba de futuro), the wedding ceremony (verba de praesenti), or the honeymoon (copula carnalis). So also in the nineteenth century the judges took up the meaning of these omnibus divorce clauses.

Essentially they held that this did not give the judge power to do as he liked. He must adhere to “legal principles” and these must be “so blended as to constitute an established course of justice.”

However, the only alternative to the misuse of an omnibus divorce clause was “appeal” by the defendant. Less than 1 percent are ever appealed since, in atomistic periods, most divorce cases are the results of collusion or connivance (regardless of what other aspects they may have). Even with the abolition of these clauses by 1900, the absolute divorce rate in the United States was higher than the combined absolute divorce rates in Italy, Austria, England, Scotland, Finland, Bavaria, Belgium, Serbia, Sweden, Norway, and Holland. Much of our population originated in these eleven countries.

Consequently, along with this nullification of public interest, the divorce-mill business grew up, probably beginning in Connecticut but moving westward with the frontier. As public sentiment waxed and waned, the movement had its ups and downs. At present three or four such states exist, all of which combine business, false and easily acquired jurisdiction, short residence (from six weeks to three months), and the conception that divorce is merely the breaking of a private contract. Several states are now competing for the business, and one may make a choice as to where a divorce vacation may be spent. The affluent may go to one or two foreign countries where the same business flourishes. Occasionally one of the divorces is overthrown by the courts on grounds of jurisdiction, particularly when children are involved, but most of them stand, even if contested.

Finally, bona fide jurisdiction gave way to jurisdiction for divorce. When the state first took control of marriage after the Reformation, the original idea was that the state would be severer than the Catholic Church in matters of marriage purity. This was one of the arguments of both Luther and Calvin. This appeared to be true for a while after the English Revolution and in the seventeenth-century American colonies. The church countered this formal aspect of strictness with the idea of propius parochus, instituted after the Council of Trent. Now bona fide jurisdiction of the court of the domicile over the husband, wife, children, and property, as a unit, has given way to the conception of jurisdiction for divorce alone. Migratory divorce state jurisdiction is obviously for one purpose alone, and divorce is granted, although the real domicile of both parties, the children, and the property of the family may be elsewhere and under another jurisdiction. At first, the courts in the real jurisdiction states would overthrow the specially acquired jurisdictional divorces, but lately the tendency has been to say that if people want divorces, they should have them. The law is not to “reform” but to “serve.” Although this is contested in legal theory, it is in fact true.

By a five to four vote, a recent Supreme Court decision has questioned spurious jurisdiction for divorce purposes alone, but the case was closely contested (North Carolina v. Williams, U.S.S. Court, May 21, 1945). The couple went to Nevada for six weeks and immediately after divorcing their North Carolina spouses, married and returned to North Carolina. The point at issue was whether the bona fide domicile was Nevada. The Supreme Court decided that it was not, and that Nevada did not have jurisdiction.

The contrasting opinions in this case indicate clearly that as far as law is concerned, public control over marriage and familism in the United States has practically ceased to operate. Unless the case is a flagrant one, and there are funds for legal contests, major issues of familism are decided by the individuals themselves. In the case of North Carolina v. Williams the governor pardoned the couple after conviction.

Thus the nineteenth century (and its aftermath in the twentieth) has nullified at least temporarily the greater part of real state control over marriage. Manus, potestas, the public contractual nature of marriage, bona fide jurisdiction, good intent, and the conception of injured and culpable parties have disappeared from public regulation of marriage and the family. What is left is a tangled and contradictory mass of legislation, most of it dealing with individuals and not the family, most of it ineffective except when well-intentioned people or an occasional public-minded jurist stands against the tides of dissolution battering marriage and the family.

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