find as early as 1235, a secular statute which extends
the interference of the secular law over the relations
between parent and child; that is, as to when a child
should be legitimate and when not. We shall have
a great deal to say later about marriage and divorce
laws, particularly divorce laws as they exist in this
country and as they apparently are going to be.
As early as 1235 the secular courts interfered with
the marriage relation; and the importance of that
is here: there is one great school to-day, including
largely clergymen and the divorce reformers, so-called,
who hold substantially that marriage is a sacrament,
or at least a status; that the secular law has nothing
to do with it and should not be allowed to grant a
divorce except for canonical causes, i.e.,
causes recognized by the church; that it is not like
any other contract, which can be set aside with mutual
consent; when a marriage takes place, they say, it
is a sacrament, or, at least, a status ensues which
cannot in future be altered. Consequently, it
is not like a contract; for all contracts can be abrogated
by mutual consent. On the other hand, the most
radical people go to the other extreme, and say that
marriage is like any other contract; it is
purely a civil contract, not a sacrament, not a status;
just like any other, and some of them go to what is
the logical conclusion of that position and say that
therefore marriage, like any other contract, ought
to be ended at any time by the consent of both parties.
The extreme radical view leads to the conclusion that
a man and woman ought to be divorced any time by merely
saying that they want to be; and some States have
almost got to this position in their statutes.
This may seem a very far cry from this early statute,
which does not directly concern marriage but the status
of children; nevertheless it has this bearing—it
is an interference by Parliament, by the secular,
legislative branch of government, with a relation
which the church believed to belong only to the church.
It so happens that in this instance the secular law
instead of being liberal and kindly was extremely
cruel and the reverse of liberal. Under the church
law, when a man married a woman by whom he already
had children, all those children were thereby made
legitimate, and that certainly seems the kindly and
the Christian law. But the secular barons who
constituted the Parliament, in their jealousy for the
common law, took the harsher view, that any children
born of parents who are not married at the time they
are born shall be illegitimate, although their parents
may marry afterward. Beaumont and Fletcher, in
one of their plays, make a punning reference to that.
It seems to have struck Beaumont and Fletcher as it
does us, that it was a cruel law for the Parliament
to make; when the church for once was liberal, it
was queer that the Parliament should be illiberal;
so Beaumont and Fletcher, in one of their plays, say:
“The children thou shalt get by this civilian