BY CHARLES COWLEY, LL.D
Historical societies, magazines, and students are, in a real sense, the guardians of historic truth. If a book is published which falsifies history, it is our right, and, if the falsification is important, it may be our duty, to expose the error. So, if those having the administration of a government falsify history, as the Guizot ministry of France did, when, vainly hoping to stem the tide of opposition to Louis Phillipe, it covered Paris with handbills declaring “He is not a Bourbon, he is a Valois,” it is our privilege to “put the foot down firmly,” as President Lincoln said, upon any such falsification. So, too, if a court of justice commits the indiscretion of falsifying history, as the Supreme Court of the United States did in the legal-tender case, Guilliard v. Greenman, 111 U.S., 421, it well becomes the historic student to step into the arena, as Mr. Bancroft has done, and, logically speaking, put that court to the sword. To permit such falsifications to pass unnoticed and unchallenged is a species of connivance at error; for, to quote a maxim which is recognized alike in morals and in law, Qui tacet consentire videtur: “Silence gives consent.”
An able lawyer of the Granite State bar, commenting on the decision of the Supreme Court of New Hampshire in the case of Eastman v. Moulton, 3 N.H., 156, remarked that “the Court, without knowing it, repealed nearly two hundred years of history.” In like manner, it may be said that the Supreme Judicial Court of Massachusetts, in a decision recently made, has falsified the juridical history of this Colony, Province, and Commonwealth for more than two hundred years. We refer to its opinion in the divorce suit of Robbins v. Robbins, printed, with the briefs of counsel, in 1 New England Reporter, 434, and, without the briefs of counsel, in 140 Mass., 528.
The only question presented to the court in that case was whether certain conduct on the part of the husband amounted in law to connivance at the infidelity imputed by him to his wife. For one hundred years a statute has been in force in Massachusetts (which, however, is only a reënactment of what had long previously been recognized here as unwritten law) providing that, in all matters of divorce, the Supreme Judicial Court shall follow “the course of proceedings in the Ecclesiastical Courts.” Various decisions of the Ecclesiastical Courts were cited to this court by counsel, showing that, according to the law which prevailed in those courts, the conduct of the husband amounted to connivance, and ought to preclude him from obtaining a divorce. In order to obviate the conclusion to which these decisions clearly tended, the Supreme Judicial Court proceeded to minimize the authority of the Ecclesiastical Courts, by suggesting that “the decisions of those Courts upon questions of substantive law are not of the same weight here as are the decisions of the English Courts of Law and Chancery;” because “the Ecclesiastical Courts proceeded according to the Canon Law as allowed and adopted in England; but the Canon Law was never adopted by the Colonists of Massachusetts: it was not suited to their opinions or condition.”
Now it is true that the Ecclesiastical Courts of England were Canon-Law Courts, as distinguished from Courts of Common Law and Courts of Chancery; but this court here has erroneously assumed that the rules and principles which governed the Ecclesiastical Courts in determining questions of connivance were different from and inconsistent with the rules and principles which governed the Courts of Common Law and Chancery in determining similar questions. Nothing could be further from the truth. In dealing with questions of this sort, the Canon-Law Courts, the Common-Law Courts, and the Courts of Chancery sought and found rules and principles in every system of morals and in every system of law which had prevailed in any past time in any part of the civilized world, and especially in the Civil Law of Ancient Rome. They all drank at the same fountain. In the Roman Law they found the maxim already quoted, and also the following, viz., Qui alios cum potest ab errore non revocat, se ipsum errore demonstrat: “He who, when he can, does not divert another from wrong-doing, shows himself a wrong-doer.” Qui non prohibit cum prohibere posset jubet: “He who does not forbid when he can forbid seems to command.” Qui potest et debet vetare, tacens jubet: “He who can and ought to forbid, and does not, assents.” Qui non obstat quod obstare potest facere videtur: “He who does not prevent what he can prevent seems, to commit the thing.” Many others might be cited. In short, the maxims of the Roman Law covered all questions of connivance so completely that there was no need of devising any new rules in relation thereto; and no new rules were devised.
With respect to the Canon Law we are enabled to speak positively; for the whole of the Canon Law is found in the Corpus Juris Canonici; and the Corpus Juris Canonici nowhere attempts to define connivance, and nowhere lays down any rule by which to determine whether any particular act, or series of acts, amounts to connivance. When a Canonist had to grapple with any question of connivance of new impression, he sought, and never sought but found, ample guidance in the Old and New Testaments and in the Roman Civil Law. Perhaps the learned judges who promulgated this disparagement of the Canon Law have given as little attention to it as John Adams gave to it before he disparaged it in his treatise on the Feudal Law. There is a remark in one of Fielding’s novels which perhaps applies here, that, “generally speaking, a man will write better for having some knowledge of what he is writing about;” or words to that effect. The notes penned by Mr. Adams, in his private copy of his treatise, warrant the inference that, after that treatise was printed, he acquired a better understanding of the Canon Law than he had when he wrote it. Verbum sapienti.
In the Corpus Juris Canonici we find at the end of the decretals a collection of ancient maxims, of general application, culled chiefly from the Roman Law, and promulgated by Pope Boniface VIII. One of these maxims touches this case, and is the one first quoted in this article; and, singular to say, it has been twice quoted with approval by the very court which has put forth this disparagement of the Canon Law.—2 Pickering, 72; 119 Mass., 515.
In the same opinion, the court says, “Marriage and divorce here have always been regulated wholly by statute.” So far as it relates to divorce, this statement betrays a lack of information touching the divorce legislation of Massachusetts, as a Colony, as a Province and as a Commonwealth, which is simply amazing. It would be much nearer the truth to say that divorce here has always been regulated wholly by the common or unwritten law. Prior to 1658 not a word of Statute Law was enacted touching divorce in the Old Bay Colony, and not a word of Statute Law touching divorce was ever at any time enacted in Plymouth Colony. It is understood, however, that the Court of Assistants, which was established in Massachusetts in 1639, exercised the divorce power before the same was conferred upon it by any express grant; though the records of that court during the period from 1640 to 1673 have been lost, having been burned, as is supposed, with the Town House, in 1747.
In 1658 the Court of Assistants was expressly authorized to hear and determine “all causes of divorce;” and nothing can be more certain than that that court granted divorces in many cases.
The leading members of the General Court (which then included the Assistants), had been born and bred in England, and were familiar with the general principles which governed the Ecclesiastical Courts, and the High Court of Parliament, in granting divorces. They knew nothing of any rules or principles applicable to divorce proceedings except those which were recognized in the land of their birth, and of course they intended that those rules and principles should be followed, as, in fact, they were followed, by the Court of Assistants.
Although the Plymouth Colony had no statute touching divorce, the General Court of that colony granted divorces in at least six cases, as follows, viz.: in 1661, to Elizabeth Burge, of Sandwich, from Thomas Burge; in 1668, to William Tubbs, of Scituate, from Mary Tubbs; in 1670, to James Skiff from Elizabeth Skiff; in 1673, to Ensign John Williams, of Barnstable, from Sarah Williams; in 1675, to Mary Atkinson, of Taunton, from Marmaduke Atkinson; in 1680, to Elizabeth Stevens from Thomas Stevens; in 1686, to John Glover from Mary Glover.
In all these cases except one, the ground on which the divorce was granted was infidelity to the marriage-vow. In the case of Mr. Atkinson, the husband was presumed to have died, having been absent, and not heard of, for seven years.
Prior to 1785 there was no statute in Massachusetts which defined the causes for which divorces should be granted, or which prescribed the forms, the rules, or the principles which the court of divorce should follow, or which specified whether the divorces granted should be from bed and board only, or from the bond of matrimony; though, as a fact, most, if not all, of the divorces granted under the first charter were from the bond of matrimony.
Thus the general principles which governed the Ecclesiastical Courts and the High Court of Parliament, in relation to divorce proceedings, became and formed a part of the common or unwritten law of Massachusetts at the commencement of her history; and they have never ceased to form a part of her common law. They have been reaffirmed again and again. Thus in 1692-3, after the abrogation of the colonial charter, and the establishment of a provincial government, under the second charter, it was enacted “that all controversies concerning marriage and divorce should be heard and determined by the governor and council,” which had taken the place of the Court of Assistants. Again, in 1784-5, when the province had become a commonwealth, when the divorce jurisdiction was transferred to the Supreme Judicial Court, when the causes were defined for which that court might grant divorces from bed and board, and divorces from the bond of matrimony, respectively, it was enacted that the court should hear and determine all causes of divorce and alimony, “according to the course of proceeding in Ecclesiastical Courts and in Courts of Equity;” and this provision has been reënacted at every revision of our statutes, in 1836, 1860, and 1882. By force of this statute the general principles which governed the Ecclesiastical Courts are a part of the law of Massachusetts to-day. One short chapter of the Public Statutes contains all her statutory law touching not only divorce but several other incidental subjects. It is a chapter of fragments. Connivance, collusion, condonation, recrimination, and other defences are not even mentioned therein.
In the case of Commonwealth v. Munson, 127 Mass., 459, Chief-Justice Gray, referring to the requisites of a valid marriage ceremony, said “the Canon Law was never adopted” in Massachusetts; and this is true in respect to the particular subject which that learned judge had under consideration. He never meant it as an unqualified statement, for as such it would not be true. In 1691 the marriage between Hannah Owen and Josiah Owen was declared null and void by the Court of Assistants, because Hannah was the widow of Josiah’s brother, and because by “the Canon Law, as allowed and adopted in England,” ever since Archbishop Cranmer annulled the marriage between Henry VIII. and Catherine of Aragon, no man could lawfully marry his brother’s widow. We do not stop to consider whether the Canon Law in this respect was right or wrong; we merely cite this case to show that, as to some things, the Canon Law was adopted here. In one marked instance the people of Massachusetts deviated from “the Canon Law as allowed and adopted in England,” to follow the Canon Law as allowed and adopted by the Popes of Rome; they enacted that, upon the marriage of the parents of any illegitimate child, such child should thereby become legitimate.
The colonists of Massachusetts had no such blind prejudice against the Canon Law, or the Church of England, or the Church of Rome, as prevented them from adopting whatever they found therein which their consciences and their reason approved. So far from cherishing an unreasoning prejudice against the Ecclesiastical Courts, the people of Massachusetts have preserved, in their Probate Courts, substantially the same system of law and substantially the same method of procedure which were followed in the Consistory Court of London, and in the Consistory Court of Rome; notwithstanding that system came to them associated with the name of one of the most unpopular and yet one of the ablest of their governors—Sir Edmund Andros.
There were, indeed, two complaints which the Puritans of Old England and of New England often made against the English Ecclesiastical Courts: first, that they punished with merciless severity violations of certain ecclesiastical regulations which involved no moral turpitude; second, that they were too lax in the punishment of social sins, Sabbath desecrations, etc., etc. But nowhere among the literary remains of the Puritans do we find any suggestion that the system of morals which was recognized by the Canon Law and administered by the Ecclesiastical Courts was “not suited to their opinions or condition.” We shall not be understood as saying that the Canon Law in its entirety was ever adopted in New England, or even in Old England; it was not. When Henry VIII. assumed the prerogatives of supreme head of the Church of England, so much of the Canon Law as relates to the jurisdiction of the Pope was abrogated in that kingdom. So when the colonists of Massachusetts established “a Church without a bishop and a State without a king,” so much of the Canon Law as relates to diocesan episcopacy also fell into what President Cleveland would call “innocuous desuetude.” But they adopted the decalogue of Moses with as much reverence as did their fathers before them. They knew as well as the poet Lowell that “The Ten Commandments will not budge,” but that, vitalized by the life of Christ, those commandments stand “the same yesterday, to-day, and forever.”