Marriage, Society and the Church
By Professor NORMAN SYKES, D.D. * cc 0 the contract of marriage," observed Dr. Johnson to Boswell, " besides the man and wife, there is a third party—Society; and, if it be considered as a vow, God; and therefore, it cannot be dissolved by their consent alone." There is no question that the interests of all four parties to the marriage-contract coincide in holding that the ideal relationship is one of life-long monogamy. All would concur with Shakespeare's sentiment : Let me not to the marriage of true minds Admit impediments. Love is not love, Which alters when it alteration finds, Or bends with the remover to remove; 0, no ! it is an ever-fixed mark That looks on tempests and is never shaken.
When such a steadfastness and stability are attained, society, the Church and the individuals achieve complete harmony. But unfortunately the ideal is not always realised, thanks to the fallibility of human judgement and the frailty of human flesh.. When it fails of achievement, society has to take account of the fact, and to consider how far its best interests may be served by legalising something less than the ideal. At this juncture it often seems that the Church takes a different view of the situation, and finds its interests difficult to har- monise with those of society. The recent appointment of a Royal Commission on the perennial problem of marriage and divorce has brought the -issue into the forefront of public con- sideration; and more recent episodes have added an adventitious prominence to the matter. Since, moreover, a wide cleavage between the standpoints of the Church and of society, as represented by the Legislature, may be fraught with ill consequences for both, it may be germane to enquire whether a reconciliation is not possible, and a modus vivendi attainable. It is agreed that the ideal laid down in the teaching of Christ is that of lifelong monogamy. Similar ideals, indubitably stamped with the impress of His approval, are the prohibi- tion of oaths and the command to resist not evil. Yet Christian societies have long since believed themselves justi- fied in making extensive use of swearing-oaths; and also have recognised the necessity of a police force for the maintenance of public order at home, and of military forces for the repulse of an aggressor in international affairs. Is there just ground for maintaining that the two last-named departures from the words of Christ may be upheld without doubt by Christian States, whilst no declension from the first-named is permissible?
Moreover, there is a long gap of years between their utterance and our records of them, and it is an acknowledged fact that Biblical scholars are not unanimous in their interpre- tation of the New Testament passages relating to marriage and divorce. Particularly is this so in relation to the exception from the general principle' of the indissolubility of marriage, " except for fornication," contained in the most ecclesiastical of the Gospels, that according to St. Matthew. This is not the place to enter into detailed consideration of these differences, much less to judge between conflicting interpretations. It is sufficient to record the fact that scholars are not in agreement.
It is natural and not surprising, therefore, in view of this circumstance, that during the early centuries of the church, (as Joseph Bingham in his Origines Ecclesiasticae, for example, observed in assembling the evidence), " the ecclesiastical writers for the most part agreed in one thing—that there was no just cause of divorce allowed by Christ but only fornication " ; whereas in regard to the possibility of marrying again " after a lawful divorce," " the ancients were divided in their senti- ments upon the point." During the Middle Ages the western church upheld the principle- of indissolubility, but tempered the wind to the shorn lamb by a careful and thorough enuncia-
* Professor of Ecclesiastical History at Cambridge since 1944.
tion of the grounds upon which a marriage could be declared null (which included, for example, a pre-contract attested by two witnesses); and in the background there stood the bene- ficent plenitudo potestatis of the Papacy, by which dispensation from Biblical as well as ecclesiastical law could be granted. Thus not only divorce a mensa et thoro, that is, separation without permission to remarry, but also decrees of nullity, modified the strict application of principle. At the Reformation, the continental reformers agreed in granting freedom to the innocent party in a divorce to remarry. It is indubitable that the Form of Solemnisation of Matrimony in the Book of Common Prayer embodies the ideal of Christian marriage, as the words of the vow expressly declare. It is interesting, however, to observe that the abortive project for revision of the canon law drawn up under Edward VI, the Reformatio Legum Ecclesiasticarum, would have disallowed separation a mensa et thoro but permitted divorce a vinculo matrunonii upon other grounds than adultery. This project was never legalised; but the opinion of Sir John Stoddart given before the select committee of the House of Lords in 1844 may be noted, to the effect that he apprehended " that the Reformatio Legum having been published as a work of authority, though not of absolute legislative authority, it must have been, and in all probability was, followed; and for that reason in the spiritual courts there were dissolutions of marriage. I believe that from about the year 1550 to 1602, marriage was not held by the Church, and therefore was not held by the law, to be indissoluble." With Canon 107 of the Canons of 1603 the ecclesiastical law prohibited remarriage of either party after a sentence of divorce a mensa et thoro. Not- withstanding, though the history of the seventeenth century is confused and obscure in the matter, it would seem that divorces a vinculo did not cease to be obtained; though a Private Act of Parliament was necessary to convert the ecclesiastical separa- tion into a permission to remarry, and about two hundred such Acts were passed in the space of a century and a half. With the Matrimonial Causes Act of 1857 a new era was inaugurated; and thenceforward, down to the Herbert Act of 1937, the divergence between State and Church on this issue has widened. In the debates of 1857, A. C. Tait, then Bishop of London and subsequently Archbishop of Canterbury, " spoke in favour of accepting the compromise conferring on the clergy the liberty of refusing to celebrate the marriage of the guilty party, and per contra allowing such marriage to be cele- brated in the parish church by another clergyman who did not disapprove. . . . I fear my votes on this Bill have given great offence to many; but I have acted according to my conscience." In the revision of canon law at present -under consideration by the Convocations, remarriage of divorced persons according to the rite of the Church of England is to be forbidden.
But if the problem might seem to have been thus solved for the Church from a legal standpoint, it remains as an acute pastoral issue. For as a matter of fact, a number of marriages contracted after divorce prove to have stability and permanence, and the partners thereto to exhibit those gifts and graces com- monly recognised as among the fruits of the Spirit.- Moreover, where children are born, even the rigorist school of theologians allows that they cannot be considered to be outside the pas- toral ministrations of the Church. But if they are to be admitted to the sacraments, can their parents be permanently excluded ? And if the parents are to be admitted to communion, where lies the logic of a refusal to allow their civil contract of marriage to be followed by a service of blessing in church ? What has been driven out of the door by canonical enactment re-enters through the window of pastoral responsibility and ministration.
For the fact is that twentieth-century opinion within the Church of England has not been unanimous. As the Lambeth Conference of 1948 recognised, the Minority Report of the Divorce Commission of 1912, which included Archbishop Lang amongst its signatories, allowed divorce for adultery; and the comment is appended : " according to this pronouncement, the marriage bond can be ruptured." At the present juncture it is eminently desirable that the standpoints of Church and society should not diverge into fundamental opposition through the Church's adoption of a rigorist attitude on the one hand or the State's acceptance of a purely secular view of marriage on the other. Is a modus vivendi possible by the permission for a private service of dedication in church after a civil marriage ? Perhaps the weightiest and wisest opinion on this delicate and difficult issue is that of the historian-bishop Mandell Creighton, whose learning, sagacity and moderation are beyond question, and such Bishops as Randall Davidson, Frederick Temple, Christopher Wordsworth, Edward King of Lincoln and also Canon William Bright of Christ Church have taken substantially the same attitude. Creighton wrote : " The marriage question is dreadfully difficult, and would require a volume. . . . Speaking generally, the question raises in its extremist form the problem of the actual application to life of the principles of the Gospel. We must remember—it cannot be remembered too much—that the gospel consists of principles, not of maxims. The only possible principle concerning marriage is that it is indissoluble. But all principles are set aside by sin ; and our Lord recognised that as regards marriage. . . . I must own myself to a strong indisposition to set the Church against the State on such a point as the interpretation of the latitude to be assigned to the permission of dissolution which our Lord's words imply. It has always been found difficult to adjust law and equity. But is the Church on this point to admit of no equity ? The mediaeval system was a mass of fictions or dispensations and subterfuges. The question has always troubled the English 'church. Cranmer, Andrewes, Laud alike had no fixed principles. Now the State has taken the matter into its hand and marriages are primarily civil contracts. We as Christians abhor divorce ; but when a divorce has been judged necessary, are we to refuse any liberty to the innocent and wronged party ? It seems to me a matter for our discretion on equitable grounds in each case. I could not advise any of my clergy to refuse to solemnise a marriage of an innocent person who genuinely desired God's blessing. I prefer to err on the side of charity."
Such a judgement, by such an authority, is not to be lightly dismissed.
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