Popular Law-making eBook

This eBook from the Gutenberg Project consists of approximately 485 pages of information about Popular Law-making.

Popular Law-making eBook

This eBook from the Gutenberg Project consists of approximately 485 pages of information about Popular Law-making.
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
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Popular Law-making from Project Gutenberg. Public domain.