The Law and the Poor Part 8

From Cranmer's day until 1857 no divorce law was pa.s.sed. In the meantime, if you were a peer with a naughty wife, you got an Act of Parliament pa.s.sed to divorce her. It was an expensive proceeding and, incidentally, of doubtful legality. But the eugenics of n.o.bility and the purity of breed in the peerage made some such machinery necessary, and so you had "An Act for Lord Roos to marry again," and others similarly ent.i.tled. Only the very rich at the rate of two or three a year could avail themselves of this procedure, and, of course, the very poor had not a look in at all.

It was a judge who awakened the world to the iniquity of it all, and he did it by a jest. There are some funny things said in the High Court to-day, but they do not seem to be designed to push the world along as this witty speech did. It was Mr. Justice Maule--a sly dog, the hero of many a good circuit story--that one about the threatening letters, for instance--it was Maule J. in a bigamy case, _Regina_ v. _Thomas Hall_, tried at Warwick in 1845, who woke up the country to the fact that there was a divorce problem, and that it wanted solving.

Hall was a labouring man convicted of bigamy and called up for sentence.

Maule, in pa.s.sing sentence, said that it did appear that he had been hardly used.

"I have indeed, my Lord," called out poor Hall, "it is very hard."

"Hold your tongue, Hall," quoth the judge, "you must not interrupt me.

What I say is the law of the land which you in common with everyone else are bound to obey. No doubt it is very hard for you to have been so used and not to be able to have another wife to live with you when Maria had gone away to live with another man, having first robbed you; but such is the law. The law in fact is the same to you as it is to the rich man; it is the same to the low and poor as it is to the mighty and rich and through it you alone can hope to obtain effectual and sufficient relief, and what the rich man would have done you should have done also, you should have followed the same course."

"But I had no money, my Lord," exclaimed Hall.

"Hold your tongue," rejoined the judge, "you should not interrupt me, especially when I am only speaking to inform you as to what you should have done and for your good. Yes, Hall, you should have brought an action and obtained damages, which probably the other side would not have been able to pay, in which case you would have had to pay your own costs perhaps a hundred or a hundred and fifty pounds."

"Oh, Lord!" e.j.a.c.u.l.a.t.ed the prisoner.

"Don't interrupt me, Hall," said Maule, "but attend. But even then you must not have married again. No, you should have gone to the Ecclesiastical Court and then to the House of Lords, where, having proved that all these preliminary matters had been complied with, you would then have been able to marry again! It is very true, Hall, you might say, 'Where was all the money to come from to pay for all this?' And certainly that was a serious question as the expenses might amount to five or six hundred pounds while you had not as many pence."

"As I hope to be saved, I have not a penny--I am only a poor man."

"Well, don't interrupt me; that may be so, but that will not exempt you from paying the penalty for the felony you have undoubtedly committed. I should have been disposed to have treated the matter more lightly if you had told Maria the real state of the case and said, 'I'll marry you if you choose to take your chance and risk it,' but this you have not done."

And so the judge gave Hall three months or, as some say, four. But that was because he had not told Maria all about it. It was for not playing cricket, not for breaking the law. And where the parties commit bigamy out of sheer respectability and a desire to placate Mrs. Grundy and have some marriage lines in a teapot on the mantelpiece to show the lady who lives next door, the judges, providing there is no deception, wisely treat the offence as something far less deserving of imprisonment than non-payment of rates. Why the police prosecute in these cases the chief constable only knows.

And the scorn and irony that Maule poured on the law of divorce roused the public conscience, and there was a Royal Commission in 1850 and a Divorce Act in 1857, and the result was the Divorce Court as we know it, an excellent tribunal for the matrimonial troubles of well-to-do people, but of no use to poor Hall and Maria. For Maule's words slightly paraphrased might be as truly spoken to the bigamist of to-day as they were to poor Hall.

And four years ago we had another Royal Commission, and hundreds of witnesses were examined, and papers and reports handed in, and many days spent in collating and considering the same, and much stationery consumed.

It was a shabby thing to the poor to inst.i.tute this long-winded inquiry.

There was nothing to inquire into. The mountain has finished groaning, and the expensive and ridiculous mouse has made his appearance--and all it comes to is that what good old Thomas Cranmer said ought to be done in 1550 the majority think might be experimented on in 1914; only--the archbishop of to-day is no longer on the side of reform.

That, I suppose, shows us very fairly the pace at which the world moves forward and the Church moves backward. In a great and necessary social reform, such as this, the Church occupies the position of the old-fas.h.i.+oned horse lorry strolling down the middle of the road amiably blocking the modern traffic of the city. It is all very pleasant and rea.s.suring to those nervous folk who fear we are rus.h.i.+ng like Gadarene pigs into a sea of legalised vice and immorality, but to visionaries and dreamers like myself who would like, as the children say, "to see the wheels go round" in their lifetime, it has its mournful side.

There are two ways in which those who are satisfied that the world is the best of all possible worlds meet proposals for reform. If they are backed up by popular clamour and agitation they say with some show of reason that it would never do to give way to threats of violence. If, on the other hand, the campaign for reform is conducted by mannerly argument it is commonly said that there is no demand for a change. Comfortable clerical persons are never tired of telling you that there is really no demand from the poorer cla.s.ses for any reform of the divorce laws.

True, people do not go out in the streets and break the windows of Cabinet Ministers or make themselves politically disagreeable after the fas.h.i.+on of the middle cla.s.ses who have grievances real or imaginary. But anyone whose advice is sought by the poor in their troubles knows that the demand for divorce exists if it were of any use uttering it aloud to our smug and respectable rulers. Of course the demand or no demand is immaterial to anyone who has grasped the fact that it is a principle of elementary justice that the poor should have the same audience and remedies in all our Courts as the rich.

The real demand for divorce is to be found in the circ.u.mstances of the lives of the poor. I propose to set down a few typical cases drawn in every instance from public published records.

Jane married Fred when twenty-two years of age. Soon after the marriage he began to ill-treat her and would not work. Jane's parents helped them in business. Fred continued his ill ways and at length gave Jane a beating.

Jane took out a summons, but would not face the Court, and forgave Fred.

After five years of unhappy married life Jane went back to her parents taking her two children, Fred agreeing to pay her three s.h.i.+llings a week.

At the end of nine months he ceased to send any money and disappeared.

For seven years Jane lived with her parents until they died. After their death she found it a great struggle to live and pay the rent. Charles now comes on the scene, he takes lodgings and pays the rent. Ultimately Charles and Jane live happily together and there are two children of the union. Charles provides for Fred's children as well as his own. Charles and Jane would like to marry for their own sake and for their children's.

In so far as there is any sin or immorality in this story the promoters of it and the sharers in it are those who stand in the path of divorce reform.

Here is another typical case. George marries Mary, their ages are eighteen and seventeen. Soon after marriage Mary--who comes of an immoral family--starts drinking and going about with other men. Ultimately she deserts George and becomes pregnant by another man and is confined in hospital. The guardians proceed against George for the expenses of the confinement, but he is able to prove to their satisfaction that he is not the father of the child. Mary then disappears to further infidelities and George goes back to live with his mother. Later on Anna appears on the scene and George and Anna have now a comfortable home and healthy infant.

"They think a deal of it and wish it could be legitimate."

So, no doubt, do Charles and Jane and many other poor parents in like case. The law says that these people are ent.i.tled to have a divorce, only the law erects its Court in a corner of London inaccessible to these poor provincials, and makes the costs and fees and services of its judges and officials and counsellors so expensive that there is no possibility of Charles and George, and Jane and Anna, and their little infants having the blessings of legal and holy matrimony because they have not the cash to purchase the luxury which is not for the likes of them anyhow. And when it is suggested that divorce might be cheapened and made available for these poor citizens archbishops shake their heads, and legal bigwigs, with their eye on the fees and the costs, hold up their hands in amazement. Divorce is a reasonable proposition for Marmaduke and Ermyntrude, of "The Towers,"

Loams.h.i.+re, but for George and Anna in Back Tank Street, Shuttleborough--not likely. There is no demand for it, says the Minority Report, and its worthy authors point out with cynical contempt for the working cla.s.ses that they have got a system of separation orders which is really all they require.

Now if there is one thing which the evidence before the Commission puts beyond doubt it is that the law in relation to separation orders induces, invites, and causes immorality in the poor. Cranmer, you remember, knew all about that, and looked on separation without the right to remarry as an unclean thing. But since the sorrows of the poor in their marriage s.h.i.+pwrecks were so manifest, and the Divorce Court was closed to them, systems of magisterial separation orders, cheap permanent divorces, without the right to marry again, have become the order of the day.

There are some six thousand of these decrees made annually. The evidence is overwhelming as to the evils that spring from these orders. As Mrs.

Tennant reports, "I believe that separation orders, the general alternative offered to divorce, work badly in working-cla.s.s houses, and on the whole make for an increase rather than a diminution of immorality. We have to consider housing conditions and economic circ.u.mstances which often do not make for clean or wholesome ways of life, and where the relief offered by separation is not only inadequate but positively mischievous."

Put in plainer terms by the witnesses, a labouring man, if he has to find a home for his children, has to find a woman to keep house for him; a woman of the same cla.s.s has to pay a rent, which necessitates the taking in of a lodger. Human nature being what it is, it seemed superfluous to appoint a Royal Commission of trusty and well-beloved ones to tell us what would happen. This is a system that the Archbishop of York thinks "probably fulfils its purpose fairly well."

Of course, it all depends what its purpose may be. If it is its purpose to stand in the way of cheap divorce and the rights of the poor to have the same chance of rescue from a s.h.i.+pwrecked marriage that the rich possess, all is indeed well. But if the object of the law is to bring to those who are weary and in misery some hope of a new life and a new home where children can be born without shame and the parties can live in accordance with the wishes of themselves and their neighbours, then with all respect to the Primate of England, the law is probably fulfilling its purpose very d.a.m.nably.

It is only fair, of course, to remember that the Archbishop of York and his learned colleagues of the Minority Report never meet Fred and Jane and George and Anna in real life, and can know no more about such folk at first hand, and have as little chance of understanding their point of view, as I have of studying and comprehending the sociological limitations of the higher priesthood.

Detestable as I hold these ecclesiastical errors to be in their practical bearing on the lives of the poor, I am hopeful that time and argument will overcome the ecclesiastical veto on reform. I am sure that even a bishop would be converted to healthier views of life if he could have a little home chat with George and Anna. And if their pleading did not convince him, I have a belief that the sight of their babies might touch the heart which even in a bishop, we may suppose beats somewhere beneath the chimere and rochet or whatever the vestments are called in which his lords.h.i.+p disguises his human nature from the lower cla.s.ses.

Many of our judges and other learned men see very clearly the enormous importance of divorce reform to the poor. Mr. Justice Bargrave Deane put the matter very straightly to the Commission when he said, "The question of divorce is more a question for the poor than the rich. The rich have their homes and their comforts and their friends who are of a different position and who can by their own advice and conduct keep people straight." In so far as this implies that the standard of morality or etiquette of decent matrimonial conduct is stricter among the rich than the poor, I doubt its truth. The working cla.s.ses have no leisure for flirtations and philandering. The behaviour of a fast set in a wealthy country house--which is generally more vulgar than really naughty--would probably scandalise the dwellers in a back street. But what the learned judge wished to emphasise was that the consequences of ill-conduct in a husband or wife are far more serious in the everyday life of the cottage than in that of the mansion. Here he is undoubtedly right.

What, for instance, can be more terrible than the effect of persistent drunkenness on the married life of the poor. Alfred and Anna have two children. The man earns thirty-two s.h.i.+llings and sixpence a week when in full work and is a thoroughly decent and respectable man. His wife is an inebriate. She p.a.w.ns everything for drink and neglects her children. Her husband obtains a separation order, but after three years Anna promised reform, and Alfred, like the good fellow he was, took her back.

Unfortunately in two months she was as bad as ever, and furniture, bedding, clothes, all the household goods disappear to the p.a.w.nshop. The children are reported upon by the school authorities. The parents are prosecuted for neglect, and on Anna agreeing to go to an inebriates' home for twelve months the bench postpone sentence. When she comes out she is a wreck, suffering from alcoholic neuritis which is leading to paralysis.

During her absence Alfred has had to pay seven and six a week for her maintenance. He now allows her five s.h.i.+llings a week and she lives with her sister. He is on short time earning twenty-six s.h.i.+llings a week. The children are without mother, the home is without a woman's care and influence and his income is rendered insufficient to provide the necessaries of life.

Here is another picture--John married Catharine in 1896. There was one child. When the infant was nine months old Catharine was forced to leave her husband on account of his drunken habits. The child went to its grandmother and Catharine went to service for seven years. After that time she met Charles, a widower, with one child. Being a brave and sensible woman she went to live with him as his wife. They have two children of their own now, one is three years old and the other six months. They have a good home and are very happy, and would like to be married if the law allowed it.

Now all that religion has to tell us about these cases is that marriages are made in heaven and that heaven having once made these two utter messes of human affairs, it is impious for human hands and minds to try and mitigate the evil for which heaven is responsible. I wish those for whom these old-world blasphemies have merely a folklore interest would leave this so-called religion mumbling in its outer darkness and apply their practical minds to so reforming the law that the lives of Alfred and Anna and Catharine and Charles and their innocent babies, and hundreds of other good men and women and innocent children, might no longer have to live in this civilised country under any legal disability or under any social shadow of ignominy or shame. In practice these folk very often do marry again without the blessing of Church or State, as in the last-cited case, and live useful and virtuous lives, bringing up happy children in good homes. The law should a.s.sist such citizens in the interest of the State, for the community want good homes and healthy children leading happy lives.

The recommendation of the Majority Commission in this matter is a very conservative one. It is that habitual drunkenness found incurable after three years from a first order of separation should be a ground for divorce. This, coupled with divorce for cruelty or desertion for three years and upwards, would certainly cover some of the sadder cases that were brought to the notice of the Commissioners.

The right of the State to refuse divorce in the case of the insanity of a party to a marriage seems hardly arguable. Here is one of the many sad stories. Norah married a soldier twenty years ago. Fourteen years ago he was taken to an asylum, where he still is, and Norah applied for relief.

She was offered scrubbing work at the workhouse from 7 a.m. to 6 p.m. at nine s.h.i.+llings a week and some bread, or two-and-six a week and six pounds of bread, with liberty to take in two lodgers. Norah, to be with her children, chose the latter. John was one of the lodgers. He found his way to Norah's heart by buying presents of boots and clothing for the children. And so Norah and John became man and wife, save and in so far as the law refused them that status. As Norah told a lady visitor, "I suppose you think it was wrong for me to drift into our present way of living, but it was such a struggle and he was so good to us. I have never been killed with wages, but we are as comfortable as we can be. I often wish we were free to marry because we do not like our children being illegitimate, and people look down on a woman so, if she lives as I am doing."

In this matter it is cheering to know that the archbishop and his learned adherents in their Minority Report are prepared to make some concession. I state this with pleasure, remembering the wise words of that good old Welsh parson, the Rev. John Hopkins, of Rhoscolyn, who said, "Indeed, Judge Parry, remember this, one must be charitable even to dissenters." _A fortiori_ one should be just even to archbishops, and it is hopeful that in the matter of insanity where one of the parties is either of unsound mind at the time of the marriage or in a state of incipient mental unsoundness which becomes definite after six months of marriage and the suit is commenced within a year of marriage the Minority Report timidly proposes that such a marriage might be annulled.

What the difference in principle may be between the cases of a mad husband who has been married for six months and a madder husband who has been married for six years the learned ones do not inform us, but we may regard it as a sign of grace that there are some matrimonial miseries that seem to these hard-hearted pundits worthy of sympathy and relief.

No protest seems to be made by the Church against the go-as-you-please divorce methods of to-day among the upper cla.s.ses, but if divorce by consent does not exist among the rich it shows great rect.i.tude and self-denial on their part. One often reads of a case like the following one. Mrs. A. is neglected by her husband, who leaves her. She asks him to return and he refuses. She files a pet.i.tion for rest.i.tution of conjugal rights. The Court makes a fourteen days' order on the undefended pet.i.tion.

I wonder if such an order has ever been obeyed or was ever intended to be obeyed. On receiving the order Mr. A. writes that he is not coming back, but that he will be found staying at a certain hotel with another lady under the style of Mr. and Mrs. A. Inquiries are made, and this proving true a divorce pet.i.tion is filed. This again is undefended and the decree _nisi_ goes as of course.

It is conceivable that such a procedure might be used by two intelligent persons who did not respect the laws of their country as a method of divorcing each other by consent, but I have no doubt that the well-to-do who constantly go through these forms are far too scrupulous in their observance of the letter and spirit of our divorce law to be guilty of anything that could be construed into collusion.

I do not think that in this country, except among wild and fanatical folk and some of the fast set with whom we need not concern ourselves, there is any demand for divorce by mutual consent. But, even if this were enacted, it does not follow, as Montaigne has told us, that it would be used. The idea that a more reasonable system of divorce will lead to a wholesale system of divorces is an absurd folly, a bogey used by ignorant but honest clericals to frighten good people who rather enjoy being scared to death. The fat boys of sociology love to make their victims' flesh creep, and when they speak of divorce reform constantly suggest that human nature tends to immorality in matrimonial affairs. As a matter of fact human beings naturally prefer marriage and married life where it is at all a successful inst.i.tution to divorce and divorced life. This is wonderfully ill.u.s.trated in Belgium where, as M. Henri Mesnil, the French avocat, points out, divorce law "as provided for by the Code Napoleon has remained in force down to the present day: in spite of the long predominance of the Catholic party dissolution of marriage by mutual consent is still possible in that country. I might say that although possible it is a very rare thing. I think only one case of divorce by mutual consent will be found amongst four hundred cases in Belgium."

Here we have the results of a hundred years' experience of a European country not unlike our own. It bears out exactly what one would expect, and it is only by ignoring such evidence and referring to the laxity of State procedure in America, without reminding the reader that there is no evidence of any greater laxity in the state of morality there than elsewhere, that the Archbishop of York and his friends can claim that the "preponderating voice of history and experience"--a charming phrase--is in favour of their Minority Report.

The archbishop treats history as Moses treated the rock. He strikes it with his archiepiscopal staff and there flows forth a gush of watery precedents to rejoice the hearts of the faithful. A poor pagan like myself can only approach the rock with a humble geological hammer and, knocking a few chips off it, report that it does not come of a water-bearing family.

Outside miraculous draughts of history there is nothing to be found in the past experience of social life that tells against a reform of our present divorce laws.

But no reform in the law will be of the least use to the poor unless jurisdiction in divorce is given to the County Court. The opposition to this is twofold. It comes from those who object to any reform at all and see that by keeping divorce costly you naturally limit its use, and, again, it comes with even greater force from those who are making their money out of the present system. Very naturally the Divorce Court Bar, having an excellent paying business all to themselves, do not want to share it round with other people. Towards their trade union att.i.tude of mind I have every sympathy. But when it is more than hinted that it would really be beyond the capacity of a County Court judge to try those "very difficult considerations of cruelty, condonation and connivance," I prefer the alliteration of the phrase to the sense of it. There is really no mystery about divorce law. The issue is an absurdly simple one, of grave importance to the lives of the parties certainly, but to a lawyer with a business mind far easier to try than many of the issues that arise every day in bankruptcy, Admiralty and commercial cases, and in arbitrations under the Workmen's Compensation Act.