masius (f 1728), who regarded marriage as merely a civil institu- tion designed for the purposes of the state, and which, therefore, might be set aside whenever it failed to answer the desired end.1 The present law of Prussia, although an improvement on the previous legislation, is far below the Scriptural standard. Be- sides adultery and wilful desertion, it makes many other offences grounds of divorce, for example, plots endangering the life or health of the other party ; gross injuries ; dangerous incompati- bility of temper ; crimes entailing an infamous punishment ; ha- bitual drunkenness and extravagance ; and deliberate mutual con- sent, if there be no children fruit of the marriage to be dissolved.
The United States.
The laws of the several states of this Union on the subject of divorce vary from the extreme of strictness to the extreme of laxness. In South Carolina no divorce has ever been given. The effect of refusing to regard adultery as a dissolution of the mar- riage bond is, as proved by the experience of Catholic countries, to lead the people to regard that crime as a pardonable offence. It was indictable. In New York adultery is the only ground of divorce ; but separation from bed and board is granted for cruelty, desertion, and refusal on the part of the husband to make pro- vision for the support of the wife. In several of the other states, besides adultery and desertion, many other grounds are made sufficient to justify divorce ; of these grounds the following are the principal : imprisonment, neglect to provide for the maintenance of the wife, habitual drunkenness, and cruelty. In some states the whole matter is left to the discretion of the courts. In the laws of Maine it is said that divorce " a vinculo " may be granted by any justice of the Supreme Court, " when in the exercise of a sound discretion, he deems it reasonable and proper, conducive to domestic harmony, and consistent with the peace and morality of society." The law of Indiana says divorce may be granted for any cause for which the court deems it proper.2 In Rhode Island to the enumeration of specific causes is added, " and for any other gross misbehaviour and wickedness in either of the parties, repug- nant to and in violation of the marriage covenant." In Connect- icut the statute passed in 1849 allows divorce for "any such
1 See his elaborate article on ** Ehe " in Herzog's ReaUEncykhpSdie, Stuttgart and Ham- burg, 1855, vol. iii. p. 703.
3 Bishop, Marriage and Divorce, book vn. chap. xl. §§827 [542], 830 [544], 4th edit. Boston, 1864, vol. i.
404 PART III Ch. XIX. — THE LAW.
misconduct as permanently destroys the happiness of the petitioner and defeats the purpose of the conjugal relation.'' 1
Duty of the Church and of its Officers.
There are certain principles bearing on this subject which will be generally conceded, (1.) Every legislative body is bound to conform its enactments to the moral law. This may be assumed as a self-evident proposition. (2.) Every Christian legislature is bound to conform its action to the laws of Christianity. By a Christian legislature is meant one which makes laws for a Chris- tian people. It is not necessary that it should represent them as Christians, to be their agents in teaching, propagating, or en- forcing the principles of the Christian religion. It is enough to constitute it a Christian legislature that the great body of its constituents who are bound to obey its laws are Christians. No one hesitates to say that Italy, Spain, and France are Catholic countries ; or that England, Sweden, and Prussia are Protestant. As all the powers of legislatures are derived from the people, it is irrational to suppose that the people would delegate to their representatives authority to violate their religion. No legislature of a Christian state, therefore, can have the right to make laws inconsistent with the Christian religion. This principle, so rea- sonable and obvious, is conceded in the abstract. No state in this Union would dare to legalize adultery or bigamy. Before the Ref- ormation all questions concerning marriage were under the juris- diction of the Church ; after that event they were, in Protestant countries, referred to the authorities of the state. " It never, however," says Stahl, " entered the minds of the Reformers, to assert that marriage was purely a civil institution, to be deter- mined by civil, and not religious laws, or that the testimony of the Church as to the divine laws of marriage was not a binding rule for the legislation of the state." 2 And in still more general terms he declares that " What the Church as such [the body of Christians] testifies to be an unchangeable divine law, ■ jus divi- num,' and upholds within its sphere, is the impassable rule and limit for the legislation of a Christian state." 3
3. No act of any human legislature contrary to the moral law can bind any man, and no such act contrary to the law of Christ can bind any Christian. If, therefore, a human tribunal annuls
1 See Woolsey, Essay on Divorce, New York, 1869, p. 205.
2 Die PhUosophie des Bechts, Rechts- und Staatslehre, I. iii. 3. 1. § 69, 4th edit. Heidel- berg, 1870, vol. ii. part 1, p. 441.
8 Ibid. §68; p. 435.