March 2, 2008
STATISM REQUIRES ATOMIZATION:
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)
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.
You'd think they'd have recognized that the State has a vested interest in dissolving all external ties between people and rendering individuals dependent on itself.