THE NEW SCHAFF-HERZOG
statute-maker in multiplying the permissible grounds of divorce. Yet even the most radical thinkers of the sixteenth and seventeenth centuries to a large extent still appealed to authority rather than to reason and experience in their attempts to solve a great social problem. Only gradually, after three centuries of struggle, has civil divorce, on rational grounds sanctioned and regulated by the State, been almost universally estabUshed throughout the civilized world. In England— more conservative than Protestant Germany— no immediate change in the canon law of divorce was effected by the Reformation; for the liberal provisions of the commission of Edward VI. failed of adoption. Except by parliament, full divorce was not granted. Until 1857 the sole relief obtainable in the courts was the ecclesiastical decree of separation from bed and board; and this was allowed only for two causes, adultery and cruelty.
Among the Independents and Puritans advanced Protestantism bore its legitimate fruit. By these sects in the new world civil marriage,
5. Civil and therefore civil divorce, were insti-
Divorce tuted. The American type of liberal and New divorce legislation had its birth in the
England New England colonies. Before the Piiritanism. Revolution in the five Southern provinces not a single instance of either full or partial divorce has been discovered. Courts with competent jurisdiction were not created; and there were no statutes on the subject. The only relief from bad marriages was through informal or parol separation; and, contrary to the English practise, separate alimony without divorce was sometimes granted, even by the county courts. The case is somewhat different for the middle colonies. A few marriages were dissolved by the legislature in Pennsylvania. Civil divorce through arbitration or judicial decree existed in New Netherlands under the Dutch regime. For some years after the English took possession there is evidence of the survival of arbitration in cases of separation, and of marital reconciliation managed and recorded by the courts. With the exception of this practise, judicial divorce a vinculo ceased in New York with the EngUsh conquest, and it was not revived until the act of 1787 Subsequent to the meeting of the first assembly in 1683 there is no clear evidence of legislative divorce. On the other hand, Cadwallader Golden declares that previous to 1689 the " governors of New York took on them the power of granting divorces " ; and this seems to be an entirely unique instance of executive decree.
A far.more liberal policy prevailed in the Northern colonies. In most respects throughout New England from the outset the broad modern doctrines of the Reformatio legum of the commission of Edward VI., though even now not wholly accepted in the mother country, were put in force by Puritan and Separatist alike. The most advanced ideals of Protestantism were realized. The American conception of divorce as belonging not to the criminal, but exclusively to the civil, jurisdiction had its birth in the seventeenth century. For more than 100 years in the New England colonies
the canonical decree of separation from bed and board — which the early Reformers were inclined to reject — was practically, though not wholly, abandoned; while, on the other hand, a dissolution of the bond of matrimony, with right of remarriage, was freely granted for adultery, desertion, and even on other grounds. For Massachusetts the records are but partially preserved. Between 1639 and 1692 forty actions for divorce or annulment have been discovered; while between 1739 and 1776 at least 107 such suits were tried by the courts. The complete record, doubtless, would disclose many more. From 1650 onward Rhode Island authorized divorce a vinculo. This colony was much afflicted by the evil of legislative divorce. During nearly the entire provincial period the assembly, side by side with the courts, acted on divorce petitions. The divorce legislation of Connecticut gained surprisingly early maturity. In the middle of the seventeenth century no society in the world, with the possible exception of Holland, possessed a system so modern in character. Separation from bed and board was rejected. Reasonable grounds for absolute divorce were sanctioned. Husband and wife were treated with even justice; and, although legislative divorce was permitted and liable to abuse, the greater part of the litigation seems always to have been entrusted to the regular courts.
II. European Divorce Legislation: During the seventeenth century, almost simultaneously in Holland and America, the foundation of modern divorce law was laid. In its original form the law of 1792, instituting civil divorce in France, practically sanctioned free dissolution of wedlock at the pleasure of the parties. The natural result was a vast number of decrees. Accordingly, in 1803 the Code Napoleon substituted a more conservative provision, allowing absolute divorce for five causes. The law of 1803 was abrogated in 1816, and civil divorce was restored only in 1884; but the liberal policy of France, as expressed in the Code NapoUon, undoubtedly has had a powerful influence on the extension of civil marriage and divorce throughout Europe. The act of 1884 sanctions absolute divorce, on the petition of either spouse, for adultery, cruelty, and condemnation to infamous penalty, if at the same time the penalty be corporal; while separation from bed and board is still permitted.
Previous to 1900 the laws of divorce in German lands were complex, obscure, and well-nigh past finding out. The conditions were probably as unsatisfactory as they are in the United States. By the imperial code of 1900 absolute divorce is sanctioned for five causes: (1) adultery; (2) attempt on the life of either spouse by the other; (3) malicious desertion; (4) " when either spouse has been guilty of grave violation of the obligations based on the marriage or of so deeply disturbing the marital relation through dishonorable or immoral behavior that the continuance of the marriage can not be expected from the other; " and (5) insanity {Geisteskrankheit) of three years' standing. It may reasonably be doubted whether any " omnibus clause " in the laws of American States gives wider