TY - JOUR
AU - Lettmaier, Saskia
AB - Abstract Why did two leading European countries (Prussia and England), which at first sight appeared to have much in common, enact radically different divorce legislation during the eighteenth century? This Article takes a close look at each country’s reforms, their legislative history, and their likely effects in an effort to tease out what motives lay behind them. And by connecting the legal changes to the countries’ sociopolitical and intellectual structures, it goes on to explain why the reforms were so different. The Article’s findings are relevant not only for the history of the law of divorce, but also for the broader issue of what forces play a role in the evolution of the law. Today, few would doubt the proposition that there are social and ideological “causes” of legal development. However, what these causes are and in what combination they have to be present for a legal change to occur are questions that are rarely examined in any detail. Introduction Legal history is the story of legal continuity and change over time, and it is the task of the legal historian to illuminate and analyze these patterns.1 Thus, periods and areas of striking legal development (or of a striking absence of such development) tend to attract the legal historian’s attention. For England and Prussia, the years between 1670 and 1794 were a period of striking development when it comes to the law of divorce. Both countries significantly revised their rules on marriage dissolution over this period. What is more, they revised them in significantly different ways. By the end of the eighteenth century, Prussia had what was arguably eighteenth-century Europe’s most liberal divorce law.2 England had made the more modest transition from a divorce-less society to one that allowed divorce (but only by a private act of Parliament) in certain cases of adultery. In short, between 1670 and 1794, the divorce laws of England and Prussia did not just change: they ended up representing the polar ends of the spectrum of divorce law regimes among countries that had broken with the Church of Rome and joined the Protestant Reformation in the sixteenth century.3 What explains each country’s development, at this particular time and in this particular form? And what explains the differences between the two national developments that we see? These questions are important, not just for the history of the law of divorce, but also for the broader issue of which forces drive legal development. In my view of legal evolution, forces outside the closed legal system (i.e., political, social, economic, and ideological factors, among others) are likely to play a role. Today, this is an assumption that few would question. At least since the school of historical jurisprudence, associated with men such as Friedrich Carl von Savigny (1779–1861) in Germany and Sir Henry Maine (1822–1888) and Sir Paul Vinogradoff (1854–1925) in England, the structures of the law have been conceived of as subject to the contingencies of time, place, society, politics, and culture.4 Consciously reflected (and, perhaps more often still, subconscious) cultural sensibilities, as well as economic, political, and social conditions, are now seen as playing a role in shaping the structure of a legal system and the content of legal rules,5 although there continues to be disagreement over the precise extent of these “external” influences.6 At this stage of my argument, I would like to assume that legal developments have social and/or intellectual “explanations,” even if the interrelationship is highly complex7 and even if there remains an inevitable gap between historical legal sources as the empirical reference point of legal historiography and the overall historical moment, which—as a living, but past process—can be neither observed nor recovered. We are fortunate in that our quest for sociocultural explanations can build on excellent sources of knowledge. During the eighteenth century, England and Prussia counted among the five “great powers” of Europe,8 although they got to that position by quite different routes. Historians and social scientists looking at the development of the “successful” modern state have accordingly always seen England and Prussia as presenting the two main alternatives in the state-building process, and they have regularly paid special attention to conditions in these two countries in their research.9 As a result, we know a lot about England’s and Prussia’s political, social, and ideological structures for the relevant period, which certainly helps an exploration of the likely causes of the divorce law reforms. However, there are also two difficulties with our comparison, about which it would be good to be upfront. The first is that the divorce laws of England and Prussia were different even in 1670, the point at which we start. This calls for a little bit of background. A uniform divorce law once existed in all Western countries, but only until the sixteenth century and the start of the Protestant Reformation (1517). The earlier uniformity was due to the fact that, before the Reformation, the Catholic Church, rather than individual territorial rulers, had complete jurisdictional and substantive control of all matters that concerned the dissolution of marriage.10 How the Church acquired this control is a complicated story that I cannot tell here. I will just say that the Church’s power is connected with three twelfth-century developments: the evolution of European universities as centers of (legal) learning; the creation of an integrated system of canon law (including transnational tribunals);11 and the articulation of a full sacramental theology of marriage as a union symbolizing the eternal and indissoluble union of Christ and his church and a channel of sanctifying grace.12 The last point—the church’s sacramental theology of marriage—also determined the content of the church’s law of divorce.13 The basic rule was simple: a marriage, once validly formed and consummated,14 was indissoluble during the lifetime of both spouses.15 An annulment (somewhat misleadingly termed a divortium quoad vinculum) was available where the marriage had been void ab initio because of a marital impediment (such as a close relationship) existing at the time of the marriage. For all causes post-dating the marriage, however, only a divortium quoad thorum—what, in modern terms, we would call a judicial separation—was available, and only on limited grounds, namely for adultery and heresy, established under classical canon law, to which cruelty was added by practice.16 A divortium quoad thorum allowed the couple only to separate from bed and board—it did not sever the marital bond, and it did not allow the parties to remarry. The Reformation changed this common position.17 According to Protestant thought, marriage was not a sacrament,18 but “an external, worldly matter, like clothing and food, house and property.”19 In rejecting the sacramentality of marriage, the reformers also rejected the primary basis of the principle of marital indissolubility. In contrast to the Catholic position, they believed that there were legitimate reasons for divorce. The first was adultery. For instance, the German leader of the Reformation, Martin Luther, argued that since death dissolved a marriage and since adultery carried a death sentence in the Law of Moses (Deuteronomy 22:22–24), it was “certain that adultery also . . . [dissolved] a marriage.” Moreover, as Luther saw it, Jesus expressly exempted adultery when he forbade married people to divorce each other in Matthew 19:9.20 The second legitimate reason for divorce was “when one spouse runs away from the other . . . , secretly and treacherously.”21 A malicious deserter acted contrary to the very character of marriage, which joined husband and wife together and required them not to live apart except by mutual consent or for unavoidable necessity. For Luther, the deserter’s crime was even worse than the adulterer’s, and there was no one whom he would rather have “beheaded than this scoundrel.” If the deserter proved unwilling to return, the innocent spouse might be declared free.22 Hence, for Luther and the other Protestant reformers,23 it was clear that even a pious Christian could obtain a full divorce with permission to remarry for the twin reasons of adultery and malicious desertion.24 In 1522, Luther listed impotence (“not equipped for marriage because of bodily or natural deficiencies”) as a third reason.25 However, since the impotence had to exist at the time of the marriage, this ground of dissolution should be classed as an impediment. This is probably why Luther had dropped impotence from his list of divorce grounds by 1530. The Hohenzollern dynasty, the ruling family of the Markgraviate of Brandenburg, members of whom would go on to become the kings of Prussia in 1701, joined the Reformation in 1539.26 Eventually, England moved to its own variant of Protestantism, too, although its move was a rather complicated story,27 with the pendulum swinging back and forth between Catholicism (early Henry VIII28 and Mary) and Protestantism (later Henry VIII and Edward VI) until the Elizabethan Settlement of 1559. The Elizabethan Settlement has had many interpreters, ranging from those who see it as being wholeheartedly in line with Lutheran tenets and those who stress its unique via media nature (halfway between Rome and Geneva), to those who regard it as Protestantism of the Calvinist variety.29 This multiplicity of views is likely due to the fact that the Elizabethan Settlement was a compromise that combined (a more moderate version of) the liturgical and doctrinal innovations of Edward VI’s reign,30 which were clearly Protestant (of the Calvinist variety31) in character, with an almost wholesale continuation of the traditional church system, jurisdiction, and canon law.32 Despite its compromise nature, most scholars agree that the English Reformation was much more in continuity with the Continental Reformation than distinct from it and that the connections with the reformed churches (as opposed to the Lutheran) on the continent were perhaps particularly close.33 While both countries had, therefore, made the transition away from the Catholic camp by the final decades of the sixteenth century, and while both now denied the sacramental quality of marriage, there were differences in the repercussions these changes had for the countries’ laws of divorce. The Hohenzollern territories introduced full divorce for the two scriptural reasons of adultery and malicious desertion. The 1573 consistorial ordinance for the Hohenzollern territory of Brandenburg, for example, allowed divorce for these reasons; spouses who separated for other reasons could be imprisoned or exiled, if obdurate.34 Virtually identical grounds were set forth in the 1584 ordinance for the territory of Prussia.35 Post-Reformation England, by contrast, ultimately opted to retain the principle of marital indissolubility. Although the Protestant view that adultery utterly destroyed the marriage bond and gave the innocent party a right to remarry was occasionally acted upon in the reigns of Edward VI and Elizabeth I36 and although there were divorce reform proposals that would have been far reaching,37 by the early seventeenth century it was unequivocally reasserted that—whatever might be the scriptural or theological position—the church courts remained bound by the traditional canon law and its principle of marital indissolubility.38 The only “divorces” that they could grant were separations from bed and board (for adultery and cruelty by either the husband or the wife), which gave no right of remarriage. First, the Star Chamber held in the case of Rye v. Foliambe (1601) that a second marriage—contracted while the first wife, who had been divorced for adultery, was still alive—was void, for the divorce was only a mensa et thoro.39 And three years later, the same principle was clearly enacted in the canons of 1604, which provided that “the parties . . . separated shall live chastely and continently; neither shall they, during each other’s life, contract matrimony with any other person.”40 Ecclesiastical judges even began to include express prohibitions of second marriages in formal sentences of separation,41 and they consciously avoided the misleading word “divorce” in their separation orders.42 As a result, English marriage law (but not necessarily Anglican marriage theology) remained wedded to its ancient basis of an indissoluble contract. What does this different starting position (limited dissolubility versus indissolubility) mean for our comparison of later developments? First of all, we might state what it does not mean: it does not mean that we cannot ask what social and ideological factors, broadly defined, may have played a role in shaping later developments. What it does mean is that when we ask the question, we have to bear in mind that there might be what I shall call a “doctrinal” or “narrow legal” explanation for later developments. That is to say, different later developments in each of the two countries may have been the result not of extralegal factors, but of preexisting legal differences extending themselves. The second difficulty with our comparison is that the main development periods do not quite coincide. The key developments in England took place earlier than those in Prussia, and the outer time limits of the reference period of this Article (1670 and 1794) are in fact taken not from one or both countries, but from one country each. The year 1670 marks the transition to full divorce in England (albeit for a very narrow reason). For Prussia, on the other hand, the year 1670 does not function as a caesura. The year 1794 is associated (in the minds of German law students, at least) with the Allgemeines Landrecht für die Preußischen Staaten, a comprehensive codification of Prussia’s entire substantive law.43 For our purposes, the year marks the culmination of a development (not always a straight-line one, as we shall see) toward a very generous divorce law in Prussia. This development, however, does not set in in the late seventeenth century (like the development in England), but only shortly before the mid-eighteenth century. For England, the year 1794 has no special significance. Our examination of the English and the Prussian divorce law reforms has two levels. The one, which appears more straightforward, is historical: What actually happened? The second, more problematic one is analytical: Why did it happen? While these two questions are obviously interrelated, in what follows, we shall try to keep them distinct. Hence, in Part I, I shall consider the legal developments first, and I shall do so separately for each country. A close look at each country’s reforms offers strong clues as to the motives for their adoption. What I still leave out of account in the first part of the Article are the social context and possible sociocultural explanations for the legal developments that we see. These explanations (or attempts at explanations, for they must by their nature remain speculative) are the focus of Part II. I. The Legal Changes A. England Changes to the existing divorce law regime first occurred in England. Interestingly, there was no change at all at the level of the generally applicable law. As far as the general law was concerned, the marriage bond remained within the exclusive jurisdiction of the ecclesiastical courts, and these courts remained bound by the principle of marital indissolubility. However, in the late seventeenth century, the English legislature devised a way out of the indissolubilist impasse. From 1670 onwards, Parliament occasionally relaxed the rigor of the general law by means of openly special legislation. Full divorces were granted not by judicial decision, but by a private act of Parliament in certain cases of adultery. Since divorce for adultery was the norm in Protestant countries, one might at first be inclined to think that what drove England into making these exceptions to the traditional rule was a late effect of the Reformation: the perceived need to get rid of a remnant of the “popish law,” to follow the sayings of Christ as reported in Matthew 19:9, and to bring England into line with other Protestant countries (like Scotland, just north of the English border, which legalized divorce for adultery as early as 156044). On this view, the only remaining question would be why England was so late to catch up. However, once one takes a closer look at the cases and circumstances in which English divorce acts were granted, one begins to doubt whether catching up with the Protestant mainstream was in fact Parliament’s concern. England did not just introduce full divorce for adultery considerably later than other Protestant countries—unlike other Protestant countries, it did not introduce it for all, but only for certain cases of adultery. The original rationale for the parliamentary intervention was formulated in the late seventeenth century in the Roos (1670),45 Norfolk (1692–1700),46 and Macclesfield (1697–1698)47 divorce cases. All three cases involved men of England’s aristocratic elite—Lord Roos (the only son and heir apparent of the Earl of Rutland), the Duke of Norfolk, and the Earl of Macclesfield—whose marriages had failed to produce legitimate offspring and whose wives had allegedly committed adultery. In each case, the unavailability of full divorce, the absence of legitimate heirs, and the risk, or even existence,48 of adulterine issue combined to threaten the orderly patrilineal descent of large estates and ancient titles. Peerages usually descended in the direct male line, i.e., from father to eldest son, unless there was a special remainder to broaden the inheritance.49 This meant that noble families might become extinct in the absence of a legitimate son. In two of the early cases, more than titles and property were at stake. High politics and religious prejudice also played a role. The application in the Roos case was supported by King Charles II, who regarded it as a potential precedent for obtaining a release from his own barren marriage, siring an heir, and removing his brother James from succession to the throne.50 And in the Norfolk case, the ducal honors and estates were almost certain to devolve upon a Roman Catholic successor—rather than a Protestant supporter of the Glorious Revolution—were the Duke to die without having produced legitimate children of his own. The Duke was apparently aware of the strong politico-religious bias operating in his favor, for he reportedly told a witness that since there were “either one or two-and-twenty Catholic heirs of my family before any Protestant one, if I would bring in a bill of divorce I should obtain it on that account.”51 In short, in each of these cases, the rule of marital indissolubility clashed with the powerful social interest in preserving property rights and ancient titles to persons of the true blood (and sometimes the true religion). In each case, the threat was removed by passing a private act of Parliament, which pronounced a divorce and allowed the husband to remarry.52 Up through 1750, a further thirteen divorce acts were passed, according to the records that survive from this time.53 These acts show that parliamentary divorce continued to be an exceptional remedy, which was not available in all cases of adultery, but only in those in which the adultery threatened to disrupt the orderly transmission of titles or property in the legitimate male bloodline. For one thing, since only wifely adultery could bring spurious issue into the family and cause the “estate . . . [not to] go according to the law of God and nature,”54 divorces were granted only to husbands for the adultery of wives.55 For another thing, nearly all of the divorces were granted to men who had considerable property to pass along and who were at that time childless (or at least without a legitimate son) and thus in desperate need of producing an heir. Five of the successful applicants were titled or heirs to titles,56 and a further seven were men (or the sons and heirs of men) of property.57 In ten of the successful divorce petitions, there had never been any legitimate issue. In one, there had been a son, but he was dead.58 One applicant had two daughters, but no son.59 Only one successful petitioner had a living son, but his application came late in the period (1747) and expressly mentioned the possibility that the son might predecease him, thus exposing him to the risk of having “a spurious issue to succeed him.”60 I also found two applicants with living sons who seem to have had their divorce applications rejected.61 These three practical restrictions on the availability of parliamentary divorce (i.e., male applicant, considerable property, no son) are pretty strong indications that the remedy was intended to ensure patrilinear property descent to legitimate male heirs of the body, as a number of scholars have pointed out before.62 And those unconvinced by the restrictions themselves may consider the wording of a typical pre-1750 divorce application. Such applications characteristically averred that the petitioner “hath no Issue, nor can have, or hope for any other than a spurious Issue to succeed him in his . . . Honours, Titles and Estates, unless the . . . Marriage be declared Void and annulled by Parliament, and . . . [the petitioner] be enabled to marry any other Woman.”63 The chief purpose of these applications was to free the husband to remarry and beget a legitimate male heir (and to bastardize the wife’s adulterine issue, if any). Relief was typically sought not so much for the comfort and happiness of the individual husband as “for the future Support and Comfort of himself and Family,”64 i.e., for the preservation of the line; and it was in fact not uncommon for bills to be brought in the names of both the husband and his father (whose heir apparent he was). The petition in the Roos case, for instance, was brought by Lord Roos, the only son and heir apparent of the Earl of Rutland, as well as by the Earl himself “and others their relations.”65 It was only in the second half of the eighteenth century—and thus nearly one hundred years after the first divorce act—that the original rationale for the relief was lost.66 After being for decades the necessary safety valve of a patrilineal society for certain cases of wifely adultery, legislative divorce became available for all such cases. After 1750, the proportion of childless marriages among marriages ending in divorce fell, and having no issue was seldom included as a special plea.67 Rather, wifely adultery per se (and the related “loss of the comforts of matrimony”68) was now a sufficient claim to Parliament’s indulgence.69 In the second half of the eighteenth century, more divorce acts (on average 2.3 per year70) were passed. Still, exacting procedural rules meant that parliamentary divorce largely remained the preserve of the wealthy.71 The injured husband had to have the persistence (and the funds) to take his case to a church court and a common law court first, before finally bringing it to Parliament. After some early uncertainty,72 obtaining a divorce a mensa et thoro in the church courts became an indispensable prerequisite, and a standing order of the House of Lords eventually required the ecclesiastical separation sentence to accompany the first exhibition of the bill.73 Suing the lover for the tort of “criminal conversation” (i.e., intercourse with the plaintiff’s wife) in the common law courts became the norm in later periods, although the requirement was not absolute and could be waived if it was impossible to bring a case.74 The origins of the English law of divorce as an institution for the protection of property lived on in one more special feature: England’s divorce law distinguished between the adultery of the husband and that of the wife (and it would continue to do so until the early decades of the twentieth century). The original proprietary rationale for the relief was inapplicable to female petitioners. And although the remedy was opened for women in the early nineteenth century (at a time already outside our reference period),75 divorce applications by female petitioners were held to a higher standard. Because of its association with the confusion of progeny and property, wifely unchastity was perceived as always posing a threat to the very fabric of the social order, even if these evils did not exist in the particular case. A husband’s sexual indiscretions did not stand upon the same footing. As Lord Chancellor Eldon put it: “In many cases [of husbandly adultery] not only a reconciliation might be brought about, but it became the especial duty of the wife to forgive her husband from motives of tenderness and concern for the interests of her innocent children.”76 For the wife to be eligible for relief, the husband’s adultery would have to be as socially harmful as wifely adultery as a general category. It would have to be an “outrage . . . repugnant to the feelings of all civilized communities”77—something that neither the wife nor society could forgive. Women could thus hope for a parliamentary divorce starting in the nineteenth century, but only if they could show that their husbands’ adulteries violated basic norms of the social order. Mr. Addison (and later Mr. Turton), for instance, was guilty of such conduct. He had committed “incestuous” adultery with his wife’s sister and thus disrespected a tie of affinity that the “interests of morality, of social order, and of easy and unrestrained dealing between those near connexions”78 required to be maintained. In 1840, Parliament found that adultery combined with the crime of bigamy constituted another fundamental violation.79 For mere (even persistent) acts of adultery by the husband, however, “the only remedy for the wife . . . [continued to be] submission.”80 We might add that the idea that “simple” acts of adultery by a wife were somehow socially more pernicious than such acts by a husband made sense only from a standpoint that viewed marriage as predominantly an institution for the intergenerational patrilinear conveyance of property. If one takes the social utility of marriage to consist mainly in its procreative and child-rearing functions, the gender inequality no longer makes sense. In Prussia, for instance—where, as we shall see, the latter view prevailed—it was male adultery that was, if anything, considered the more harmful variant. As the Landrecht’s drafters pointed out, a wife’s spurious issue was prima facie legitimate and would typically be provided for by her (unknowing) husband. A husband’s out-of-wedlock children, on the other hand, were illegitimate (if their mother was unmarried) and would usually grow up without a male provider.81 The Prussians, unlike the English, accordingly refused to treat the adultery of husbands any differently than that of wives. B. Prussia By legalizing divorce for adultery (and additionally for malicious desertion), Prussia reached a stage of development in the early sixteenth century that England did not begin to match until the late seventeenth century, approximately 150 years later. The next significant developments in Prussia did not coincide with England’s great innovative period of 1670–1750. Until shortly before the mid-eighteenth century, Prussia’s divorce law was largely the same as had been adopted after the Reformation. For the Prussian heartland of Brandenburg, for instance, the formal law was still contained in the consistorial ordinance of 1573, as (modestly) amended in 1694.82 Adultery and malicious desertion continued to function as the sole divorce grounds. The only changes were that procedure in desertion cases was simplified somewhat at the turn of the eighteenth century83 and that the Prussian consistories became a little more adventurous in their interpretation of the concepts of adultery and desertion. They began to treat them as collective terms for other equally grievous offences against the marital relationship, such as dissolute behavior creating a violent suspicion of adultery, attempts on the other spouse’s life, denial of conjugal debt, and infamia (a kind of civil death involving stigmatization and deprivation of all rights).84 However, divorces were not granted except for grievous marital fault and generally not until after a long separation period.85 Divorces for reasons outside the official grounds were available from (and in rare cases granted by) the Landesherr. However, this power, too, was restrictively construed and applied throughout the seventeenth and early eighteenth centuries. Generally, a divorce by rescript would issue only if the facts closely resembled those in the Bible.86 In 1681, for instance, the Great Elector Frederick William of Brandenburg (1620–1688) refused to grant a divorce for mere incompatibility. His successor, King Frederick I (1657–1713), granted one for a persistent refusal to render the conjugal debt, but made clear that he did so only because he considered this case very similar, if not identical, to malicious desertion.87 This (still fairly scriptural) law of divorce underwent fundamental change in the second half of the eighteenth century. The development ultimately culminated in Prussia’s comprehensive codification of its entire substantive law in the Allgemeines Landrecht of 1794, but its roots lie much earlier. The first signs of a new approach to divorce can be dated to the 1740s, to the first regnal years of King Frederick II of Prussia (ruled 1740–1786), who became known as “the Great.” From there, the trajectory to the divorce law of the Landrecht was not a straight or predetermined one, but a series of backward and forward steps, rather like the successive swings of a pendulum. Frederick started off as extremely liberal. In the early years of his rule, he granted divorces not just for fault, but also for mutual consent and even for unilateral aversion. What is more, he usually did so summarily, without any waiting period.88 Remarriage was usually permitted for both spouses; only the marriage of an adulterous divorcé(e) with his or her partner in crime was prohibited as long as the injured spouse was still alive.89 Some examples may illustrate Frederick’s early approach to divorce: in 1746, two “incorrigible persons” were divorced by royal decree and both were allowed to remarry.90 Five years later, Frederick instructed his courts that where the marriage partners were notoriously hostile toward each other, a divorce should be granted forthwith, without a prior separation from bed and board.91 And immigrants to Prussia who could show that their spouse did not want to join them there could obtain an immediate divorce without following the usual procedure in desertion cases.92 By the 1780s, Frederick was having second thoughts. He published an Edict Against the Abuses of Easy Divorces in 1782.93 Unilateral divorce was thereby largely restricted to certain broad fault grounds—in particular, adultery, malicious desertion, persistent denial of conjugal debt, and cruelty (with the last expressly defined to exclude mere quarreling and minor physical assault). The only non-fault grounds were, first, a premarital illness that caused disgust and repulsion and, second, insanity, but only if it had lasted for a year, there was no reasonable prospect of recovery, and a new marriage was necessary for the applicant’s maintenance or for carrying on a business. Consensual divorce was limited to couples who had lived for several years in an entirely childless marriage. The procedure in divorce cases also became more onerous. A divorce application was met with the appointment of a commission, consisting of neighbors and mutual friends, whose task it was to question the applicant on his reasons for wanting a divorce and to urge him to continue in the marriage if the reasons seemed clearly insufficient. If the applicant persisted in his desire for a divorce, a pastor was brought in to get to the root of the marital upset and to reconcile the parties, if possible. It was only after all these attempts at saving the marriage had failed that a divorce could be granted. Remarriage continued to be possible for both spouses; only the intermarriage of adulterers was prohibited, subject to dispensation. Less than a year after this edict, Frederick was having second thoughts again. In the spring of 1783, he issued a cabinet order instructing the courts not to be too willing, but also not to be too cautious in granting a divorce. The reasoning and the resulting divorce guidelines were the following: Where two spouses are so angry at each other that there seems no hope whatsoever of a reconciliation, they won’t have children together, and this is bad for population. If such a couple is divorced, on the other hand, and the woman marries another fellow, there is a greater likelihood of children. Therefore, you always have to consider the circumstances and grant a divorce only where compromise and reconciliation seem out of the question.94 The Prussian approach to divorce thus seems to have been shaped by a desire to optimize the procreative and child-rearing potential of marriage. This is true not just for the cabinet order of 1783 (even if that order shows the procreative emphasis in particularly stark relief), but also for the two earlier swings of the pendulum. The 1782 Edict Against the Abuses of Easy Divorces allowed divorce for mutual consent (as the only non-fault ground) only if the couple had lived for several years in an entirely childless marriage. By way of justification, the edict pointed out that marriages that had already produced children were worth preserving, even if their future procreative potential was closed off by the spouses’ aversion to each other; the aim was to ensure that the children of the existing marriage would be properly raised and provided for.95 And even the earliest, very liberal phase in the Frederician approach to divorce, with its free dissolubility of marriage for unilateral aversion, is consistent with a natalist motive. In the early years of his rule, Frederick seems to have regarded a marriage where either spouse wanted out as being unlikely to lead to the desired benefit of children, and it made sense for him to grant divorces, and instruct his courts to do the same, where the marriage partners were notoriously hostile toward each other. The three different phases outlined above thus differ not in the overall policy goal (which was oriented to population growth throughout), but only in the view as to how best to achieve that goal. The Landrecht’s divorce provisions also attempted to tread the fine line between the Scylla of encouraging abuses and the Charybdis of obstructing population growth.96 The Landrecht permitted divorce for certain broad fault grounds, which typically concerned behavior likely to inhibit procreation (desertion, denial of conjugal debt, imprisonment for crime, etc.) or injurious to the economic health of the family (non-support, disorderly lifestyle, etc.). The Landrecht also legalized unilateral no-fault divorce where the marriage was not likely—or not desired—to produce offspring. Rather than requiring the spouses to stand by each other in times of adversity, the Landrecht allowed one spouse to divorce the other if the latter became incapable of sexual intercourse or contracted certain diseases likely to inhibit intercourse (even if he did so after the marriage and through no fault of his own97). The same applied where he became incurably insane—the drafters being of the opinion that “no reasonable person would want to have children with a mad person and expose his offspring to the risk of suffering the same affliction; indeed, the state and human society have an interest in making sure that these people do not procreate.”98 Even unilateral strong and deep-seated aversion could justify a divorce where no hope remained that the goals of marriage would be fulfilled.99 As regards the availability of consensual divorce, it was now felt that a restriction was called for only if the couple was currently caring for a child. Marriages that were childless at the time of the divorce could be consensually dissolved; it was no longer necessary to show that the couple had lived for several years in an entirely childless marriage.100 II. The Reason Why We have seen how Prussia arrived at a liberal divorce law, apparently to increase population size. And how England made no alterations at all at the level of the general law and instead relaxed the indissolubility principle by means of private legislation, and this (at least at first) only in cases in which adultery combined with a threat to the orderly transmission of property in the legitimate male bloodline. Laying the reforms side by side, it is rather hard to miss that there are notable differences. These differences concern, first, the method of reform (generally applicable laws, and ultimately a comprehensive codification, in Prussia versus individual private acts in England) and, second, the overall policy goal (optimizing the procreative and child-rearing potential of marriage in Prussia versus protecting patrilinear property descent in England). What accounts for these differences? What combination of political, social, economic, and ideological factors produced far-reaching divorce law reforms oriented on optimizing reproduction and child rearing in Prussia and far more modest and property-protecting ones in England? In my view of legal development, in order to come up with potential explanations, we have to take a close look at the sociocultural contexts in which the respective reforms occurred. Eighteenth-century Prussia has long been regarded as the paradigm case of an absolute monarchy.101 In the traditional story, as told by historians like Otto Hintze (1861–1940) and Conrad Bornhak (1861–1944), successive Hohenzollern rulers had, since the mid-seventeenth century, decisively broken the political power of the estates and established the twin pillars of their royal absolutist rule—a strong standing army and a centralized administrative structure as loyal instruments of the Crown.102 In the past few decades, this picture has become more nuanced. Revisionist scholars have pointed out that the process of centralization was neither so ruthless nor so complete: while force and coercion did play a role in subordinating local elites, convergences of interests, compromise, and cooperation were sometimes more important.103 Royal control depended less on destroying alternative sources of power than on employing them, and while the Prussian aristocracy lost most of its political rights and direct participation in political decision making,104 it retained its privileged social position.105 Alongside the army and the bureaucracy (in which its members frequently held commanding positions), it came to function as a trusted and socially privileged pillar of the monarchic state.106 This internal reorganization, with its curtailment and cooptation of existing corporate structures, established the Prussian king at the apex of a centralized machinery. Thus, when Frederick II ascended the throne in 1740, he was in a position to formulate policies that gave primacy to the interests of the state (as he defined them),107 although his extensive formal powers may have been curbed by pragmatic considerations and may not have been matched by administrative practice.108 As Frederick saw it, the interests of the Prussian state revolved around its position as a power and its transformation into a greater power.109 Frederick’s long reign was filled with wars (in which he was usually the aggressor) designed to extend Prussia’s territories and to magnify its prestige. The War of the Austrian Succession lasted from 1740 to 1748, the Seven Years’ War from 1756 to 1763, and the War of the Bavarian Succession from 1778 to 1779. Mobilizing the country’s military and economic strength became an indispensable domestic requirement of Frederick’s competitive foreign policy. In line with cameralist science, the eighteenth-century Prussian system of administration (a rough equivalent to the French mercantilism of Jean-Baptiste Colbert),110 Frederick regarded population growth as key to a nation’s wealth.111 As a crown prince he had already expressed his opinion that “the size, quality, and prosperity of the population” were the sinews of a country’s strength,112 and he repeated these views as king, stressing that—because wars cost lives and because an agrarian economy needs ready hands—it was in a ruler’s interest to increase the size of the population to the greatest possible extent.113 Frederick’s conception of what kind of things made for power influenced his policies. For instance, it transformed Prussia’s longstanding tradition of religious toleration—which had begun as a willy-nilly consequence of the ruling house’s conversion to a minority faith in 1613 and its inability to enforce the new creed among the Brandenburg estates and populace—into an affirmative principle.114 Frederick’s deliberate confessional neutrality (“I stand neutral between Rome and Geneva”115) was based on his conviction that religious zealotry was “a tyrant that depopulates the provinces” whereas religious toleration was “a tender mother that cultivates and nurtures them.”116 It is to be expected that Frederick’s perceptions of the needs and interests of his state would have influenced his approach to divorce as well.117 Hence, it comes as no great surprise that Prussia was on a (as we have seen, rather unpredictable) quest for a divorce law that would optimize marital reproduction and child rearing. Nor is it any wonder that the Prussian reforms were in the shape of general laws and, ultimately, that of a codification. As an absolute king, Frederick was under no legal compulsion to make concessions to the special interests of various social groups118 (although he occasionally thought it opportune to do so), and the divorce law119 of the Landrecht attached almost120 no importance to the parties’ class or station. General laws must have seemed advisable for another reason as well: for Prussia, the eighteenth century was a time of immense territorial expansion. Between 1701 and 1795, and in large measure because of Frederick’s successful warfare, the country nearly tripled its geographical size and more than quadrupled the size of its population.121 Not altogether surprisingly, Prussia, which had always been a composite, disintegrated state,122 grew considerably more so over the course of the eighteenth century. For a start, by the mid-eighteenth century, Prussia’s possessions were as far flung as Cleves on the Dutch border in the west, Silesia in the south, and East Prussia in the east. Second, religious diversity was on the rise. The Hohenzollern dynasty had converted to the Reformed faith in 1613 and abjured its right of cuius regio, eius religio. As the eighteenth century progressed, the formally Calvinist Hohenzollerns were ruling over a populace composed of Lutherans, Calvinists, and, increasingly, Roman Catholics.123 Last but not least, Prussia was legally fragmented, with no centralized court structure and no unified system of laws. The primarily applicable law was local law, in which variation was rife. This was particularly true of the law of marriage and divorce, because Prussia’s regional divisions were here compounded by its religious ones.124 The subsidiarily applicable law was the ius commune, the mixture of Roman and canon law that was taught in German universities and had, since the late Middle Ages, served as the default law in the absence of specific local law to the contrary.125 However, the precise content of the ius commune was frequently uncertain, particularly in the eighteenth century when that law was being given increasingly flexible treatment by practitioners of the German usus modernus.126 Carl Gottlieb Svarez, one of the drafters of the Landrecht, was hardly exaggerating when he described the state of pre-codification Prussian law as a chaotic mix of Roman, canon, and Germanic law, royal decrees, court customs, and professorial opinions.127 In short, for eighteenth-century Prussia, rampant expansion and increasing heterogeneity created a very real need for integration and, in the sphere of law, for a common and certain code (at least as a subsidiary law), which would transcend and, in time, perhaps obliterate the country’s many regional and confessional divisions.128 What is perhaps surprising is that these sociopolitical pressures to reform the law of divorce in a single-mindedly pro-natalist—even eugenic—direction could become practically efficacious, for there were certainly intellectual hurdles standing in the way of such a transformation. According to the late medieval Catholic Church, the indissolubility of a marriage once validly formed followed from the divine will (revealed either at the first institution of marriage in Paradise or by Christ in the New Testament), from the natural law, and from the sacramental character of marriage, i.e., from binding, supra-positive precepts that human legislators could not change.129 And while the Protestant reformers had denied the sacramentality of marriage, they had not done away with the notion that there was a binding, biblically derived law that predetermined the content of human marriage legislation, at least in part.130 Protestant jurists and theologians in later sixteenth- and seventeenth-century Germany had continued to assert that human marriage laws must not conflict with the Gospel.131 In particular in the area of divorce, the tendency had been to treat the New Testament passages on marriage and its dissolution as a binding guide for the human legislator. For instance, the Lutheran dogmatician Johann Gerhard (1582–1637), whom his contemporaries regarded as the greatest theologian of his time,132 insisted that a secular ruler neither could nor should allow divorce for reasons other than those that had been sanctioned by Christ.133 According to Gerhard, Jesus’s teachings about marriage were an authoritative interpretation of the prima institutio of marriage in Paradise134—a binding elaboration of the natural law. Gerhard’s view found a powerful echo among other seventeenth-century Lutherans, such as the theologian Michael Havemann (1597–1672) and the jurists Benedict Carpzov (1595–1666) and Johann Karl Naeve (1650–1714).135 Why, then, did the Prussians feel that they could ignore the Gospel and allow divorce for reasons that had not been sanctioned by Christ (even according to the Protestant interpretation), such as mutual consent and unilateral aversion? For an answer, I think that we must look to the German modern natural law school or, more fundamentally, to the German Enlightenment or Aufklärung. The term Enlightenment, especially to an Anglo-American audience, is likely to evoke ideas of human rights and of Lockean liberalism. The eighteenth-century German Enlightenment, however, is predominantly associated with secular rationalism and the breakdown of supra-positive fetters on the temporal ruler’s legislative power.136 Some background is needed to explain this properly. Ever since the Peace of Westphalia (1648), which concluded the Thirty Years’ War and reaffirmed137 the right of territorial princes to determine the public practice of religion within their respective territories, religious pluralism had been an established fact in the Holy Roman Empire (or at least Germany, where most of it lay). The post-1648 empire was crisscrossed by confessional lines.138 There were large religious differences between the predominantly Catholic territories in the empire’s south and the mainly Protestant ones in its north, and there were pretty substantial differences even among Protestant territories.139 Moreover, religious diversity also existed within the geographical limits of the territorial states, with Prussia as one prominent example.140 If one was thinking about law in late seventeenth-century Germany, therefore, one could no longer assume confessional homogeneity, not even in a particular territory. Moreover, the recent traumatic experience of the Thirty Years’ War, if it had taught nothing else, had taught that invoking religious teachings as a supposedly authoritative source of law was likely to lead to disaster. During the war, about one-third of the German population had died, for the greater glory of a Calvinist, Lutheran, or Catholic God.141 The recent memory of this all-destructive fury provided a powerful rationale for overcoming confessional divisions.142 Thinking about law—and by implication the law of divorce—therefore had to change. It had to come to rest on principles and sources about which people from different confessional backgrounds could agree, and those principles and sources no longer included the Bible. Between roughly the mid-seventeenth and the mid-eighteenth centuries, jurists in Protestant Germany gradually adopted ways of thinking about law and about the origins of legal authority that undermined the legitimacy of the Bible as a supra-positive fetter on human (divorce) legislation.143 This process began with a new concept of natural law. To earlier Catholic and Protestant thinkers,144 natural law had been “Christian” natural law, a binding, supra-positive order that was steeped in theological arguments and scriptural premises.145 The seventeenth- and eighteenth-century jurists who comprised the German “modern” natural law school—the likes of Samuel von Pufendorf (1632–1694) and Christian Thomasius (1655–1728)—cleansed natural law of these theological influences and erected a new system that was based exclusively on rational principles.146 Pufendorf set himself the task of “abolishing in natural law all theological controversies and adapting it to the understanding of the whole of mankind who disagreed in many different ways over religion.”147 Although the root of his natural law was still God (in choosing human nature as He had done), the rest was a demonstrative discipline proceeding from an empirically given basis in post-lapsarian148 human nature in a manner analogous to that of mathematics. The German legal historian Mathias Schmoeckel has rightly called this transformation in the mode of establishing truth and knowledge an “epistemological revolution.”149 As they began to think about marriage on the basis of reason alone, divorced—an apt word—from any specifically religious ideas, these authors found that many features of marriage that had previously been regarded as immutable were in fact matters on the necessity of which human reason could not finally pronounce. Pufendorf made a start in that direction. However, his recognition of a strong social interest in marriage (he called it “socialis vitae fundamentum”150) led him to preserve a minimal mandatory core, the rudiments of a natural law “institution” of marriage.151 His successor Christian Thomasius152 was prepared to go much further. In his Institutiones Jurisprudentia Divinae (1688), Thomasius arrived at a minimalist notion of what a natural law of marriage, viewed purely by the light of reason, required.153 The modern natural law school started out as a purely cognitive separation of Reason and the Bible and an attempt to exclude everything that was not rationally provable from the content of natural law. It might have left the authority of biblical teachings—as revealed rather than natural law—in place. However, in the context of widespread religious diversity and consequent disagreement over what the revealed law was, this was unlikely. Before long, under the influence of the German rational Enlightenment, jurists were not just cognitively separating Reason and the Bible, but also denying the binding quality of biblical teachings (and indeed of any supra-positive normative order) altogether. Here, too, Thomasius was a key influence.154 From the early eighteenth century onward, one can observe a noticeable trend to “transcendentalize” the Gospel teachings, i.e., to deny their applicability to the post-Fall here and now. A good illustration is a 1714 responsum by the theology and law faculties of the University of Frankfurt on Oder, which argued that the divine “laws,” in particular of marital indissolubility, that had governed marriage in the beginning, had been intended for the prelapsarian status integritatis of man. For the present-day status corruptus, however, they set a standard that fallen man could no longer hope to live up to. The modern law should be proportioned to man’s current capacities and degree of (im)perfection.155 Similar statements abound in early eighteenth-century German treatises on marriage.156 What is more, Thomasius formulated a strongly positivist definition of law properly so called, requiring the command of a sovereign,157 which was duly published,158 and enforced by external sanctions.159 Biblical teachings, such as Christ’s counsel about divorce, failed to qualify as law properly so called on all three grounds and consequently could not bind human (divorce) legislation.160 Of course, theoretical reformulations do not necessarily translate into legal or social practice. For these new ideas to become practically efficacious, two further factors were probably important. The first was that, with Frederick the Great, Prussia had a ruler who shared these views. Frederick was “enlightened,” but not in a libertarian nor even in a predominantly altruistic sense (although he introduced a number of humane reforms, he in fact had a pretty low view of human nature, which grew more cynical with age161). He was enlightened in the sense that he could root his political judgments in broad secular knowledge and base his actions squarely on raison d’état.162 Unlike previous Prussian rulers, who had conceived of themselves as Christian princes and, ultimately, the servants of God,163 Frederick was a child of the Enlightenment, a prototype of that breed of eighteenth-century rulers whom Leonard Krieger has called philosopher kings.164 He was well read in the works of Voltaire (with whom he corresponded for decades), Locke, and Leibniz, and professed no religious faith.165 As an aufgeklärter ruler, who had imbibed the German Enlightenment notion that marriage was “at bottom only a civil contract,”166 Frederick was in a position to formulate divorce policies that looked no further than the interests of the state; and as an absolute ruler with an extremely hands-on style of government,167 Frederick was in a position to enact those policies into law.168 A second factor that likely helped the spread of the new ideas was the weakening of theological opposition.169 By the final decades of the seventeenth century, the hitherto dominant dogmatic Lutheran orthodoxy had come under serious challenge from the new Pietistic Lutheran School, which conceived of Christianity as chiefly consisting of a change of heart and consequent holiness of personal life. Pietists were less interested than orthodox Lutherans in “external” religious practice, which might accordingly be left to the (arbitrary) will of the secular legislature.170 What is more, since 1740, rationalist theologians had been on the rise in the theological faculties and within the clerical networks of Prussia.171 Crucially, they came to support Enlightenment views. The rationalist theologian Johann David Michaelis (1717–1791), for instance, denied the binding quality of Jesus’s pronouncements on divorce, arguing that magistrates and legislators were not required to prevent morally reprehensible acts, such as the free divorce practice of the ancient Jews, by means of positive laws and legal sanctions.172 What was different about eighteenth-century England such that England could (or perhaps even had to) leave it at minor divorce law reforms? One notable difference was England’s political power structure. Even revisionist histories that deny the sharp dichotomy between the eighteenth-century Prussian and the eighteenth-century English state agree that there was a difference in the structure of central government and that it is right to emphasize the defining role played by Parliament in England’s political life after 1688.173 In Prussia, successive monarchs had curtailed the political power of the estates. In England, a powerful landed elite had largely remained in the saddle. It has become commonplace among historians of eighteenth-century England to counter suggestions of a bourgeois revolution happening in the seventeenth century by emphasizing that postrevolutionary England was an aristocratic or, at any rate, a plutocratic society in which the social and political preeminence of a small propertied elite was never seriously questioned.174 True, eighteenth-century England had much more of a middling class sector than contemporary Prussia.175 Also, it was no strict society of orders. Lawrence Stone and Jeanne Fawtier Stone have described it as one of the most important features of eighteenth-century English society—setting England apart from virtually all of continental Europe—that social barriers were not maintained through law.176 Still, although social fences were jumpable, infiltration of the ruling layers of society by newcomers was rare,177 and most eighteenth-century historians would probably agree that England was no genuinely open society in this period, but rather controlled “by an extraordinarily united and stable ruling [class] monopolizing political authority.”178 This seems borne out by a closer look at England’s constitutional order. Not much need be said about the king except that the English monarchs had their wings clipped by the Glorious Revolution and that the three Georges, who occupied the English throne from 1714 until the end of the eighteenth century (and beyond),179 were not candidates for Prussian-style royal absolutism. The first two Hanoverian kings in particular—foreign, docile, and initially non-English-speaking—were by and large content to let the aristocracy control the country180 (although some recent scholarship has indicated that George II was not quite as ineffectual as previously thought181). The House of Lords, for its part, was mainly a hereditary assembly of great landowners,182 who, in terms of their wealth and political clout, started the eighteenth century strong and ended it even stronger. In 1700, they owned between 15 and 20% of the country’s landed wealth; by the century’s end, that figure had risen to between 20 and 25%.183 As a result, the peerage enjoyed considerable control over appointments to major civil and ecclesiastical posts184 and even exerted some (formally illegitimate185) influence over elections to seats in the Commons.186 Moreover, quite apart from peerage patronage, property qualifications for Commons membership meant that even the lower house had a plutocratic basis. Virtually all members representing county seats were landed gentlemen.187 Many of them were connected—by blood or marriage—with peers.188 Members for borough seats189 were more frequently “moneyed” merchants and urban professionals who had benefited from England’s emerging capitalist economy and early prosperity in trade and manufacture. However, even these new men of money should not be considered as distinct from the ruling class (whose core values they shared190), but as a subset within it. In Georgian England, then, all political power effectively sprang from the same tree: property. Substantial property owners were represented in the upper and in the lower houses. And it is hardly surprising that a government made up of substantial property owners would seek to protect private property191 and the rights of succession and carry out divorce law reforms designed to achieve that end. Nor is it surprising that a government drawn from a small section of the total population would seek to change the law mainly for its own social group. Hence England’s decision to proceed by individual private acts, which gave the propertied, rather than everybody, the exceptional escape of divorce. In fact, small-scale special legislation did not just characterize the English approach to divorce—it was the country’s preferred legislative technique throughout the eighteenth century. The bulk of England’s legislative output in this period (about half of it in the early eighteenth century192) comprised private or local acts, which applied only to a particular individual (such as the divorce acts) or a particular location.193 Frederic Maitland has rightly described these statutes as “privilegia [rather] than as leges,” since they “dealt only with a particular case” and refused “to rise to the dignity of a general proposition.”194 I noted earlier that the English reform essentially consisted of the implementation, albeit surprisingly late, of a core Protestant idea: divorce for adultery. It is true that this idea was not implemented in unadulterated form because the aim of the reform, or so I have argued, was not really to implement a Protestant principle. In common with a number of other authors,195 I have portrayed the introduction of parliamentary divorce as the by-product of the prevailing English system of property descent to legitimate male heirs of the body. The reform was driven by the needs of England’s propertied elite, and it faltered where those needs gave out. As a result, the English regime discriminated—between those who could afford an “ordeal of three distinct tribunals” and those who could not, and between men and women. Still, it remains true that the English reform seems far more respectful of what were (in orthodox Protestant thought) considered scriptural confines than the parallel reform in Prussia. What the English Parliament was doing in granting full divorces for adultery was theologically acceptable and had the support of the Anglican Church—of the bishops who voted for the acts;196 of the parish priests who solemnized the second marriages of those who had been parliamentarily divorced;197 and of those clergymen who sought private acts themselves for the allegedly adulterous conduct of their wives.198 Again it is tempting to speculate about why England was more respectful of scriptural confines. For a start, in sharp contrast to Prussia, with its peculiar multi-denominational geography, until the final decades of the eighteenth century, England remained what may be termed a “confessional state”—a state in which one official confession, Anglicanism, was established by statute, enforced through law, and, at least in theory, accepted and practiced by the vast majority of the population. It was one of the achievements of the Glorious Revolution to have introduced a measure of religious toleration for Protestant dissenters199 while still preserving the privileged position of the Anglican Church. Anglican interests were represented in Parliament,200 and participation in public life was statutorily conditioned on at least “occasional conformity” with the Church of England. The Test and Corporation Acts provided that no person could hold any office relating to the government of a city or corporation unless he had within a certain period received the sacrament according to the rites of the Church of England. Nonconformists (except Quakers and Baptists) generally chose to comply by occasionally taking Anglican communion.201 Also, for most of the eighteenth century, the Anglican Church “controlled something approaching a monopoly of English religious practice.”202 In the mid-eighteenth century, for instance, Protestant dissenters comprised only 6% of the population, Catholics only 1%, and non-Christians were a barely visible minority.203 Christoph Strohm has recently drawn attention to the fact that exposure to “confessional competition” is a productive force in legal development.204 Given the virtual absence of such competition in eighteenth-century England, which continued to self-identify (legally and numerically) with Anglicanism, the hurdles to radical divorce law reform were arguably higher there than in Prussia, with its multi-confessional geography. For some, this may already be a sufficient explanation of why the English and the Prussian developments differed. In my view, however, two further factors deserve to be considered. The first is the absence of a strong sociopolitical demand for more radical measures: what the English seemed most keen to avoid (i.e., property descent to spurious issue) could not happen except in cases of wifely adultery. So perhaps the English could stop at modest reforms because making the law of divorce “safe,” or at least sufficiently safe, for private property could be accomplished without radical changes. On the other hand—and this brings me to the second factor—it is also possible that the English had to stop at modest reforms because the intellectual obstacles, which had been cleared away by the German Aufklärung, were still potent in eighteenth-century England. When we look at the intellectual landscape of England in the seventeenth and eighteenth centuries, we find that the same ideas that existed in Germany existed in England, too. For instance, in his Treatises, John Locke (1632–1704) developed a “modern” natural law account of marriage205 that used only contractualist and empiricist-biological arguments and avoided religious or theological ones.206 When it came to divorce, Locke’s Treatises207 speculated that (absent dependent children) it might well be allowed, “either by consent, or at a certain time, or upon certain conditions . . . , there being no necessity in the nature of [marriage], nor to the ends of it, that it should always be for life.”208 And Thomas Hobbes (1588–1679) famously (or notoriously) formulated a strictly positivist definition of law properly so called, which was every bit as radical and every bit as destructive of supra-positive strictures as that of Christian Thomasius.209 The difference, then, is not in the ideas available in England; it is in the fact that in England these ideas did not win the way. Hobbes and Locke wrote during the heady days of the seventeenth-century Revolution (1640–1689),210 when the whole system of government was up for grabs. By the eighteenth century, when the political issue was decided, there was a conservative reaction. Most of the people who wrote about natural law in eighteenth-century Britain211 were not jurists, as in contemporary Germany, but theologians212—men such as Francis Hutcheson (1694–1746), a Scottish philosopher-theologian who became one of the first occupants of the newly created chair of moral philosophy at Glasgow University;213 Thomas Rutherforth (1712–1771), an Anglican clergyman and Regius Professor of Divinity at Cambridge;214 and William Paley (1743–1805), an Anglican theologian and bishop of Peterborough.215 In constructing natural law accounts of marriage, these authors also tried to adopt the “modern” style, i.e., to avoid references to the Bible and to rely only on rational arguments. However, perhaps because of their formal background in theology rather than in law, they harnessed their intellectual powers to the task of showing that the traditional vision of marriage could be defended, without appeals to scripture, by relying on a range of “rational” arguments drawn from reason, common sense, prudence, and experience.216 As the British writers found, it was often easier to support the traditional law of marriage by emphasizing (older) ideas of spousal solidarity—the affectionate and egalitarian aspects and the companionship function of marriage—rather than by limiting one’s inquiry to its procreative goal alone (as the German writers did). William Paley, for instance, in considering whether a marriage might be dissolved by mutual consent, traced the effects of such a rule upon the general happiness of married life and concluded that a right of divorce, absent a few extreme and specific provocations, would be contrary to the common happiness of the couple and, hence, against the law of nature.217 In their greater emphasis on the companionship function of marriage, the British moral philosophers resembled Thomas Aquinas, who had likewise shifted his natural law argument to the secondary goods of marriage—fides and sacramentum—when the justificatory power of its primary good (proles) ran out.218 This left a dense—rather than a minimalist—natural law framework for human marriage legislation in place. Of course, there were voices in eighteenth-century England, too, who denied the existence of any higher order natural or revealed laws. For utilitarians such as David Hume (1711–1776) and his disciple Jeremy Bentham (1748–1832), for instance, the principle of utility—or the greatest happiness of the greatest number—was unequivocally the sole yardstick of legislative policy.219 However, even Hume and Bentham would not change much about the existing law, including the existing law of divorce. Both writers emphasized that in order to achieve stability it was advisable for new generations to follow in the paths their fathers had marked out.220 And both writers developed surprisingly traditionalist matrimonial structures from the utilitarian foundations that each in different ways espoused.221 When it came to (easy) divorce, Hume saw “three unanswerable objections” to such a regime from a utilitarian point of view—the needs of children, always the chief sufferers in divorce; the danger of promoting discord by offering the couple a way out; and the divisive potential of separate spousal interests—and he in fact recommended “drawing the marriage knot the closest possible.”222 Similarly, Bentham considered “[m]arriage for life . . . best suited to the needs and circumstances of the family, and, for the generality of mankind, most favourable to the individual.”223 Before we reach the conclusion, however, that the English were simply more traditionalist than the Prussians, we should ask how this greater traditionalism came about. To explain England’s eighteenth-century traditionalism, scholars have sometimes stressed the traumatic experiences of the previous five decades of revolution. For instance, Sir William Holdsworth has argued that the “experiments of the Commonwealth period had instilled a healthy fear of any departure from the established . . . order which was not absolutely necessary.”224 While it is likely that English conservatism was influenced by the events of 1640–1660 (the Revolution’s own conservative tone has certainly been remarked upon225), it is hard to believe that the experience of social chaos was the sole or even the primary cause. After all, Germany was also strongly affected by the traumatic events of the Thirty Years’ War. Yet, as we have seen, it resolved its problems in a very different way: in Germany, unlike in England, warfare and chaos led to the entrenchment of absolute monarchies and to the breakdown of traditional fetters on the sovereign power. A number of additional possible explanations for the English respect for all things established come to mind. For one thing, England had long been territorially, legally, and religiously integrated, and it continued to be so during the eighteenth century. It would have been much harder to have a sense of tradition if England had been more like Prussia, which, pretty much throughout the period we have looked at here, was a country on the make, an ever-growing “assemblage of disparate territorial fragments lacking natural boundaries or a distinct national culture, dialect or cuisine.”226 England was also distinctive in that, by the late seventeenth century, it had established a political system that differed from that of virtually every other state in seventeenth- and eighteenth-century Europe. At a time when absolute monarchies were ascendant in the Western world, England was run by a constitutional monarch in concert with the upper and lower houses of Parliament, which collectively represented the country’s leading church and property-owning interests. There are three things to note about such a power structure, all of which would seem to indicate a rather stationary disposition. First, England was run by a multi-headed structure. Such a structure, even if it is united by common interests, is clearly not as favorable to purely legal development as an absolute monarchy that seeks to monopolize power at the top. Second, England was run by an oligarchic alliance of Anglican and property-owning interests. That such a structure would emphasize not making too many changes is not that surprising. Like the church, wealth is typically socially conservative. It generally prefers to find society’s fundamental cohesion not in a central source of unlimited authority, but in shared traditions. Edmund Burke has rather perceptively described property owners as “the ballast in the vessel of the commonwealth.”227 Third, the new constitutional order struck a delicate balance among the monarchical, the aristocratic, and the popular interests. While, as property owners, these parties had much in common, they were also potential competitors for domination. The fear of upsetting the balance and precipitating the degeneration of the state into a tyranny, an exclusive aristocracy, or a democracy was probably never too far from the surface, especially in the first half of the eighteenth century, when it was by no means clear that 1689 would stick.228 This fear might well have inspired the almost mystical reverence for the established law and constitution that historians have identified as a distinguishing characteristic of eighteenth-century Englishmen.229 Yet another factor set England apart from Prussia and other continental states: the character of its law. Unlike Germany and continental European countries more generally, which were influenced by Roman law and the Roman law emphasis on “the concepts of will, command, and the legislator,”230 England was shaped by its indigenous (common law) legal tradition, with its largely customary concept of law. This contrast in legal cultures, between what Weber has described as England’s guild-like organization of lawyers and the university-based learned legal sciences of the Continent, has been described as “altogether safe from the qualifications of revisionist scholarship.”231 According to J.G.A. Pocock, a nation’s relationship with the past is strongly affected by the character of its law and the ideas underlying it.232 The English believed that customary law was the only law that their country had ever known. If Pocock is right, then their long practice of thinking in terms of customary law may have encouraged the English to think traditionally and to emphasize “gradual process . . . [and] imperceptible change”233 when, in the course of the seventeenth and eighteenth centuries, they were invited to rethink the law of divorce. Conclusion According to the famous German legal historian Franz Wieacker (1908–1994),234 we cannot understand the great movements in Western legal history unless we understand the philosophical presuppositions of the ages that produced those movements.235 Is his thesis borne out by the foregoing study of the English and Prussian reforms of divorce between 1670 and 1794? To an extent, it most certainly is. There is no question that ideas do have a powerful force, and it is hard to imagine how Prussia could have arrived at the divorce law regime of the Allgemeines Landrecht if the intellectual hurdles standing in the way of a divorce law freed from theological strictures had not previously been torn down by a range of influential thinkers. The willingness of German Enlightenment authors to construct law on the basis of reason alone, divorced from any specifically religious ideas, certainly opened up the possibility of a secular divorce law. Similarly, the more circumspect reforms in England may be attributed to the fact that British thinkers (from natural law authors such as Paley to utilitarians such as Hume and Bentham) resisted large-scale secularization out of either religious conviction or a deep sense of national tradition, or both. But ideas, standing on their own, do not seem to be a sufficient explanation. The different developments can also be seen as the product of different sociopolitical structures. In Prussia, a strong sociopolitical demand for natalist measures met with an absolute, secular-rationalist ruler who could devise and enact the desired reforms. The English development also shows the influence of sociopolitical pressures. The divorce law reforms that England introduced seem rather consciously devised to safeguard the interests of its propertied elite. These interests generally did not require a divorce law that strayed beyond traditional scriptural confines, and the English reforms, accordingly, generally did not so stray. As practicing lawyers, we are concerned with how the law is applied and enforced. As legal scholars, we can afford to probe more deeply, into the forces that determine its content and growth. It may be unwise to draw general conclusions from just one example. But in the case of England and Prussia’s divorce law reforms at least, it would seem that the explanation is broader than the intellectual and the sociopolitical rather narrowly defined. The most plausible explanation would seem to be one that defines these concepts broadly and combines them. This Article is part of a larger project tentatively entitled “Spouses, Church, and State: Marriage Law in England and Protestant Germany from the Reformation Until the Close of the Nineteenth Century.” Earlier versions of this Article were given at Kiel University’s 2016 Legal History Conference at Sehlendorf, at the Max Planck Institute for Comparative and International Private Law in Hamburg, at Boston College Law School and the Universities of Freiburg and Münster. I received a number of helpful suggestions and comments on each occasion. In addition, I would like to thank Professors Charles Donahue Jr., Janet Halley, John Witte Jr., Martin Löhnig, Reinhard Zimmermann, and Andreas Thier for their guidance, advice, or comments on this Article or my overall project. Footnotes 1 See, e.g., Wolfgang Ernst, Zur Epistemologie rechtsgeschichtlicher Forschung, 23 Rechtsgeschichte 256 (2015). 2 Prussia’s only rival for the most liberal divorce law of the eighteenth century is revolutionary France, but the French revolutionary legislation was a mere interlude, followed by a reflux conservateur between 1794 and 1804. See Alfred Dufour, Mariage et société moderne: Les idéologies du droit matrimonial moderne 44 (1997). 3 Many Catholic countries remained divorce-less societies throughout the eighteenth century, at least for the marriages of Catholics. See generally Don S. Browning, Family Law and Christian Jurisprudence, in Christianity and Law 163 (John Witte Jr. & Frank S. Alexander eds., 2008). 4 The importance of context for legal development is a discovery of scientific legal history, itself a nineteenth-century creation, though one that can be traced back to the humanists. Research into the law’s relationship to sociocultural forces extraneous to law has been taken up by a number of legal schools, such as the Marxist tradition, the German Rechtssoziologie, and, in America, the school of legal realism of the 1920s and the critical legal studies movement of the 1970s and 1980s. Ambitious projects relating law to its sociocultural context include Lawrence M. Friedman, A History of American Law (3d ed. 2005); Alan Harding, A Social History of English Law (reprt. ed. 1973); Mathias Schmoeckel, Auf der Suche nach der verlorenen Ordnung: 2000 Jahre Recht in Europa (2005); Franz Wieacker, Privatrechtsgeschichte der Neuzeit unter besonderer Berücksichtigung der deutschen Entwicklung (1952). 5 See, e.g., Andreas Thier, Zwischen Kultur, Herrschaftsordnung und Dogmatik: Erkenntnisdimensionen rechtshistorischer Forschung, 23 Rechtsgeschichte 270, 270 (2015) (listing it as one of the “dimensions” or functions of legal history to analyze law as both expression and instrument of social, economic, and political interests). Of course, there are many legitimate lines of inquiry in legal historical research. 6 Some scholars incline to the view that law can be wholly understood as the product of society (see, e.g., Lawrence M. Friedman, Coming of Age: Law and Society Enters an Exclusive Club, 1 Ann. Rev. L. & Soc. Sci. 6 (2005)), while others argue for a greater degree of intellectual autonomy (see, e.g., Joachim Rückert, Autonomie des Rechts in rechtshistorischer Perspektive (1988)). 7 Michael Lobban, Sociology, History and the “Internal” Study of Law, in Law, Society and Community: Socio-Legal Essays in Honour of Richard Cotterrell 39, 54–56 (Richard Nobles & David Schiff eds., 2014). 8 Leonard Krieger, Kings and Philosophers, 1689–1789, at 84 (1970). The remaining three were France, Russia, and Austria. 9 John Brewer & Eckhart Hellmuth, Introduction to Rethinking Leviathan: The Eighteenth-Century State in Britain and Germany 1, 2–3 (John Brewer & Eckhart Hellmuth eds., 1999). The relevant literature includes Christopher Clark, Iron Kingdom: The Rise and Downfall of Prussia, 1600–1947 (2006); Reinhart Koselleck: Preußen zwischen Reform und Revolution (2d ed. 1975); Frank O’Gorman, The Long Eighteenth Century: British Political and Social History, 1688–1832 (1997); John Rule, Albion’s People: English Society, 1714–1815 (1992). 10 The Church’s control was not limited to marriage dissolution, but covered all matters that essentially concerned the existence of the marriage bond. For example, it reached to marriage formation (including marital impediments) as well. 11 On this development, see James A. Brundage, Medieval Canon Law (1995); Pierre Daudet, Études sur l’histoire de la juridiction matrimoniale (1933); Stephan G. Kuttner, Harmony from Dissonance: An Interpretation of Medieval Canon Law (1960); Charles Donahue Jr., Popes Alexander III and Innocent III, in Christianity and Family Law: An Introduction 176 (John Witte Jr. & Gary S. Hauk eds., 2017). On church courts and canonical procedure, see James A. Brundage, Medieval Canon Law (1995); The History of Courts and Procedure in Medieval Canon Law (Wilfried Hartmann & Kenneth Pennington eds., 2016); Knut Wolfgang Nörr, Römisch-kanonisches Prozessrecht (2012). For a masterful treatment of marriage cases in the church courts, see Charles Donahue Jr., Law, Marriage, and Society in the Later Middle Ages: Arguments About Marriage in Five Courts (2007). 12 This is usually associated with Peter Lombard’s Sentences (c. 1155–1158). The sacramental model of marriage derives from Ephesians 5:21–33 and had already been experimented with by church fathers such as Augustine of Hippo in the fifth century. Lombard’s Sentences unequivocally classed marriage as one of the sacraments of the church and exerted a persuasive influence throughout the Middle Ages and into the early modern period. See Philipp W. Rosemann, The Story of a Great Medieval Book: Peter Lombard’s Sentences (2007). On the development generally, see also 4 Historisch-kritischer Kommentar zum BGB 309–40 (vor §§ 1313–1320) (Mathias Schmoeckel et al. eds., 2018) (“II. Entwicklung des Scheidungsverbots”). 13 Donahue, supra note 11, at 16; John Witte Jr., From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition 94–95 (2d ed. 2012). 14 There was a potential way out while the marriage was still unconsummated: a respectable body of canonical and theological opinion maintained that the Pope had the power to dissolve an unconsummated union, but this power was rarely used and little known. See Donahue, supra note 11, at 16–17. 15 Of course, the formal unavailability of a means to dissolve a properly formed marriage does not mean that such dissolutions did not happen: the canon law combination of informal formation rules, a long list of impediments, and a principle of indissolubility created an obvious temptation for those seeking to end their marriages to argue that the marriages were not validly entered into in the first place. Although there were thus escape routes from unhappy matrimonial unions, research into actual practice suggests that annulments were neither easy to obtain nor widespread. See Anne Lefebvre-Teillard, Règle et réalité: Les nullités de mariage à la fin du moyen-age, 32 Revue de Droit Canonique 146 (1982). 16 According to Donahue, supra note 11, at 523, this practice probably arose as early as the fourteenth century. 17 Witte, supra note 13. For the Reformation’s impact on the legal order more generally, see Harold Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (2003); Mathias Schmoeckel, Das Recht der Reformation: Die epistemologische Revolution der Wissenschaft und die Spaltung der Rechtsordnung in der Frühen Neuzeit (2014). 18 See 36 Martin Luther, Luther’s Works 92–96 (Abdel Ross Wentz ed., 1959). For a fuller discussion, see Witte Jr., supra note 13, at 130–34. 19 46 Martin Luther, Luther’s Works 265 (Robert C. Schulz ed., 1967). For the similar views of Calvin, see John Calvin, Institutes of the Christian Religion 895–97 (Henry Beveridge trans., Christian Classics Ethereal Library 2002) (1536). 20 This view was seemingly confirmed by Matthew 1:19, in which Joseph was described as a pious man, even though he was planning to leave Mary for her presumed adultery. See Luther, supra note 19, at 311. 21 Id. at 312. 22 Id. at 313. 23 For the similar views of Calvin, see Barbara Pitkin, John Calvin, in Christianity and Family Law: An Introduction, supra note 11, at 211, 212–13. 24 Schmoeckel, supra note 12, at 344 (“III. Eheauflösung in der Reformation und Gegenreformation”). In practice, Luther was prepared to go further than adultery and desertion. See Ralf Frassek, Eherecht und Ehegerichtsbarkeit in der Reformationszeit 234 (2005) (reporting a 1527 case where Luther allowed a divorce based on the wife’s leprosy; however, he only did so reluctantly and because the wife consented). 25 45 Martin Luther, Luther’s Works 30 (Walther I. Brandt ed., 1962); Schmoeckel, supra note 12, at 344. 26 The Markgraviate was in fact somewhat slow to join the Reformation. The Elector Joachim I of Brandenburg (1499–1535) was a pugnacious adherent of the Roman Catholic faith, and he remained so even after his Danish wife Elizabeth converted to Lutheranism (she eventually fled to neighboring Saxony). The Markgraviate’s transition to Protestantism had to await the rule of Joachim’s two sons, Joachim II and Johann. While the younger, Johann (1513–1571), who inherited the Margraviate of Brandenburg-Küstrin under his father’s will, introduced Protestantism to his lands relatively quickly, Joachim II (1505–1571), who inherited the rest of Brandenburg and the title of elector, proceeded more cautiously in order to avoid an open confrontation with the King of Poland (his father-in-law), the Pope, and the Emperor. He received communion under both kinds in 1539, an act indicating his sympathy with Protestant ideas. On Brandenburg’s transition to Protestantism, see Gerd Heinrich, Tausend Jahre Kirche in Berlin-Brandenburg 157–71 (1999); Reformation in Brandenburg (Frank Göse ed., 2017); Andreas Stegmann, Die Reformation in der Mark Brandenburg (2017); Otto Hintze, Die Epochen des evangelischen Kirchenregiments in Preußen, 97 Historische Zeitschrift 67, 74–85 (1906). 27 The twenty-first-century consensus portrays the English Reformation as a “drama in five acts.” See Alec Ryrie, The Reformation in Anglicanism, in The Oxford Handbook of Anglican Studies 34, 34 (Mark D. Chapman et al. eds., 2016). 28 The English Reformation was, at least in its inception, primarily a political movement, triggered by Henry VIII’s (1491–1547) desire to end his marriage with Catherine of Aragon. Henry was initially no friend of the Reformation, but since the Pope would not grant him the desired annulment, nothing remained for him, determined as he was to shake off his conjugal bonds, but to shake off papal authority over the kings of England. 29 David Scott Gehring, Anglo-German Relations and the Protestant Cause 2 (2016). Two of the contributors to the Oxford Handbook of Anglican Studies espouse different views, with Alec Ryrie describing the English Reformation as Protestant of the Calvinist variety (see Ryrie, supra note 27, at 39), and Grace Davie classing it as a via media (see Grace Davie, Establishment, in The Oxford Handbook of Anglican Studies, supra note 27, at 288). 30 The Edwardian Books of Common Prayer (1549, 1552) introduced systematic liturgical reform. Edward’s reign also envisaged doctrinal changes, in particular the abandonment of the sacramental character of marriage, in the Forty-Two Articles of Faith of 1552 (which were never put into action because of the King’s untimely death). While the canon law of marriage was not changed under Edward (beyond the introduction of clerical marriage in 1549), there were proposals to reform it that would have been far reaching. For these, see infra note 37. 31 The architect behind the Edwardian reforms was Thomas Cranmer, the Archbishop of Canterbury. Cranmer invited some leading Franco-Swiss Protestants, notably Peter Martyr and Martin Bucer, who had much in common theologically with John Calvin: see Willem van’t Spijker, Bucer’s Influence on Calvin, in Martin Bucer: Reforming Church and Community 32 (D.F. Wright ed., 1994), to join the English Reformation. Historians have shown that Martyr and Bucer exerted an influence on the reforms undertaken (or envisaged) during Edward’s reign. See Martin Greschat, Martin Bucer: A Reformer and His Times 227–50 (Stephen E. Buckwalter trans., John Knox Press 2004). 32 Dewey D. Wallace Jr., Via Media? A Paradigm Shift, 72 Anglican & Episcopal Hist. 2, 2–13 (2003). The Uniformity Act, 1 Eliz. 1 c. 2, reintroduced a substantively Protestant Book of Common Prayer (a slightly modified version of the second Edwardian Prayer Book) in 1559, and the Thirty-Nine Articles of Religion (1563–1571) denied the sacramental quality of marriage. See 1 Edward Cardwell, Synodalia: A Collection of Articles of Religion, Canons, and Proceedings of Convocations in the Province of Canterbury, from the Year 1547 to the Year 1717, at 99 (Gregg 1966) (1842). The Supremacy Act, 1 Eliz. 1 c. 1, however, which reestablished royal supremacy over the English church independent of Parliament, reenacted Henry’s Act in Restraint of Appeals, 24 Hen. 8 c. 12, and his Act for the Submission of the Clergy, 25 Hen. 8 c. 19, and in so doing affirmed both ecclesiastical jurisdiction over marriage and a virtually unmodified canon law. 33 Wallace, supra note 32, at 10. For the English affiliation with Protestantism, see also Ian Green, Print and Protestantism in Early Modern England 556–57 (2000); Gehring, supra note 29, at 4 (England as firmly attached to the Protestant sensibilities and anti-Catholicism of confessional allies in Germany and Denmark). 34 3 Emil Sehling, Die evangelischen Kirchenordnungen des XVI. Jahrhunderts 136–38 (1909). 35 4 Emil Sehling, Die evangelischen Kirchenordnungen des XVI. Jahrhunderts 135–37 (1911). 36 The English church courts do not seem to have granted any divorces a vinculo during the sixteenth century. However, some of the laity apparently interpreted adultery, if established by the sentence of an ecclesiastical court, as a de facto permission to remarry. In Edward’s reign, the Marquis of Northampton took the liberty of remarrying after obtaining a mensa “divorce” for his wife’s adultery. He claimed that by the law of God he was completely released from his marriage by the very fact of her adultery and that refusing to acknowledge this was but a part of the Popish law, by which marriage was considered a sacrament. An ecclesiastical commission eventually agreed. Four years later, to put the validity of his new union beyond question, the Marquis was advised to seek an Act of Parliament that declared the second marriage to have been lawful by the law of God. This should not be regarded as the first parliamentary divorce, however. The Act did not divorce the parties, but only found them to be already (by the wife’s proven adultery) sufficiently divorced to allow the husband to take a second wife. Moreover, the Act was repealed under Queen Mary. On the Northampton case and the principles on which it rested, see 1 Frederick Clifford, A History of Private Bill Legislation 390 (London, Butterworths 1885) (the Act found that “the bond was broken by the very act of adultery, when judicially ascertained”); John Fraser Macqueen, A Practical Treatise on the Appellate Jurisdiction of the House of Lords & Privy Council: Together with the Practice on Parliamentary Divorce 468–69 (London, A. Maxwell & Son 1842). For further examples, see Lawrence Stone, Road to Divorce: England, 1530–1987, at 304–05 (1990). 37 Divorce reforms were contemplated during the reign of Edward VI (ruled 1547–1553). The Edwardian draft Reformatio Legum Ecclesiasticarum (1553) would have introduced full divorce on fairly expansive grounds (adultery, desertion, deadly hostility, and prolonged ill-treatment). For a modern edition of the Reformatio, see Gerald Bray, Tudor Church Reform 144–743 (2000). There was a brief moment during Elizabeth’s reign when the Edwardian draft Reformatio was resurrected. However, Parliament did not accept it. See Gerald Bray, The Strange Afterlife of the Reformatio Legum Ecclesiasticarum, in English Canon Law: Essays in Honour of Bishop Eric Kemp 36, 37–38 (Norman Doe et al. eds., 1998). 38 See Richard H. Helmholz, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s, at 563 (2004); Richard H. Helmholz, Canon Law in Post-Reformation England, in Canon Law in Protestant Lands 203, 213–14 (Richard H. Helmholz ed., 1992). 39 (1601) 72 Eng. Rep. 838. 40 Gerald Bray, The Anglican Canons, 1529–1947, at 407 (canon 107) (1998). 41 The 1604 Canons (canons 107 and 108) exhorted them, on pain of suspension from office, to require the parties to post bonds not to remarry. See Cardwell, supra note 32, at 307–08. 42 Richard H. Helmholz, Roman Canon Law in Reformation England 74 (1990). 43 Procedural law was codified separately in the Allgemeine Gerichtsordnung für die Preußischen Staaten. For background, see Sylvia Busch, Die Entstehung der Allgemeinen Gerichtsordnung für die Preussischen Staaten von 1793/95 (1999). 44 Sybil Wolfram, Divorce in England, 1700–1857, 5 Oxford J. Legal Stud. 155, 157 (1985). Desertion was added in 1573. 45 Private Act, 22 Car. 2 c. 1. For background on this case, see 4 William Cobbett, The Parliamentary History of England 447–48 (London, T.C. Hansard 1808). 46 Private Act, 11 Will. 3 c. 2. For background, see 13 T.B. Howell, A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors 1283–1370 (London, Longman 1816). See also The Duke of Norfolk’s Case: With Reasons for Passing His Bill (London, Wilkins 1700). 47 Private Act, 9 Will. 3 c. 11. For background, see 5 William Cobbett, The Parliamentary History of England 1173–75 (London, R. Bagshaw 1809). 48 In the Roos and Macclesfield cases, the wives had already given birth to illegitimate children, who were bastardized by Act of Parliament. 49 Ruth Paley & Paul Seaward, Honour, Interest & Power: An Illustrated History of the House of Lords, 1660–1715, at 43 (2010). 50 Cobbett, supra note 45, at 447–48. 51 Macqueen, supra note 36, at 570. 52 The guilty wives were given no similar allowances. However, since the beginning of legally sanctioned divorce, there were instances of remarrying adulteresses. The Duchess of Norfolk and the Duchess of Macclesfield, for example, both married again. 53 A full text search in the online version of Private and Local Bills and Acts (1695–1834) (available through House of Commons Parliamentary Papers) turned up a total of thirteen divorce bills for the relevant period, of which three failed to pass. However, some divorce acts exist only in manuscript at the House of Lords Records Office. When these are added, one arrives at thirteen surviving acts. For this figure, see also Stuart Anderson, Legislative Divorce: Law for the Aristocracy?, in Law, Economy and Society, 1750–1914: Essays in the History of English Law 412, 415 (G.R. Rubin & David Sugarman eds., 1984); Wolfram, supra note 44, at 157, 163. I am grateful to Helen Wong at the Parliamentary Archives for her assistance in locating the acts. 54 Howell, supra note 46, at 1361. 55 At common law, it was very difficult to bastardize a child born during lawful wedlock. Generally, legitimacy was presumed unless the husband could be shown to have been outside England for about nine months prior to the birth. See Edward Coke, The First Part of the Institutes of the Lawes of England 244 (London, Societie of Stationers 1628). Also, making a will was frequently no answer to the threat of property descent to spurious issue. Though since the Statute of Wills of 1540, 32 Hen. 8 c. 1, English landowners by law enjoyed broad powers of disposition, they frequently had their hands tied by the strict settlement, a device for family wealth transmission that became very popular among English landed society in the later seventeenth century. The strict settlement allowed landowners to tie up their patrimony for one generation after their deaths. The existence of a strict settlement meant that the line of descent (even if it included potentially adulterine issue) would be fixed and could not be changed by will or lifetime transfer. On the strict settlement, see Lloyd Bonfield, Marriage Settlements, 1601–1740: The Adoption of the Strict Settlement 55, 83–86, 101–02 (1983). 56 Sir John Dillon, MS 12 & 13 Will. 3 c. 17 (Baronet); William Yonge, MS 11 Geo. 1 c. 1 (heir to a Baronet); Sir John Rudd, MS 6 Geo. 2 c. 21 (Baronet); Sir William Morice, MS 11 Geo. 2 c. 6 (Baronet); Henry Duke of Beaufort, MS 17 Geo. 2 c. 2 (Duke). 57 Ralph Box, MS 2 Geo. 2 c. 31 (son of Sir Ralph Box, one of the richest businessmen of the late seventeenth century); Stephen Jermyn, Private Acts—9 Anne, no. 51 (1711) (only son of a London merchant); Frances Annesley, MS 11 Geo. 1 c. 41 (son and heir apparent of a gentleman); Daniel Mathew, MS 18 Geo. 2 c. 2; Harper Collection of Private Bills 1695–1814, 10 February 1742 to 21 February 1744, no. 17 (eldest son and heir apparent of the Governor of the Leeward islands); Corbyn Morris, MS 20 Geo. 2 c. 28; A Collection of the Private Acts of Parliament, Passed 19th George 2nd, no. 27 (1858) (gentleman); Samuel Rash, MS 22 Geo. 2 c. 15; A Collection of the Private Acts of Parliament, Passed 22nd George 2nd, no. 9 (1858) (gentleman); Godfrey Copley, MS 24 Geo. 2 c. 1; A Collection of the Private Acts of Parliament, Passed 24th George 2nd, no. 1 (1858) (gentleman). There is only one anomalous exception: Thomas Cobb of London, MS 2 Geo. 2 c. 31, who, at least at the time of his marriage, seems to have been a journeyman to an engraver. At the time of his divorce, however, he was planning to marry his business partner, who was a widow and apparently worth £500 a year. See A Collection of the Private Acts of Parliament, Passed 2nd George 2nd, no. 28 (1858); Anderson, supra note 53, at 418. 58 Godfrey Copley, MS 24 Geo. 2 c. 1. 59 Sir John Dillon, MS 12 & 13 Will. 3 c. 17. 60 A Collection of the Private Acts of Parliament, Passed 19th George 2nd, no. 27 (1858). 61 See the bills by James Jenyns, Esquire (Harper Collection of Private Bills 1695–1814, 8 March 1729 to 10 February 1744, no. 13; 23 H.L.J. 500) and by the Viscount of Hillsborough (Harper Collection of Private Bills 1695–1814, 11 February 1732 to 27 March 1735, no. 21). 62 For the argument that property interests were at stake, see in particular Stone, supra note 36, esp. at 312, 327–28; Randolph Trumbach, The Rise of the Egalitarian Family: Aristocratic Kinship and Domestic Relations in Eighteenth-Century Britain 156 (1978). Douglas James has also pointed out that “the threat of spurious inheritance hovered over Lord Roos’s case of 1670.” Douglas James, Parliamentary Divorce, 1700–1857, 31 Parliamentary Hist. 169, 169 (2012). Harvey Couch, while acknowledging that the first divorce acts were motivated by issues of legitimacy and inheritance, seems to argue that these ceased to be factors by the early eighteenth century. Harvey Couch, The Evolution of Parliamentary Divorce in England, 52 Tul. L. Rev. 513 (1978). 63 Henry Duke of Beaufort, MS 17 Geo. 2 c. 2. Recitals to this effect were ubiquitous in pre-1750 divorce bills. 64 Daniel Mathew, MS 18 Geo. 2 c. 2 (emphasis added). 65 Quoted in Clifford, supra note 36, at 397–98. The same thing happened in the Jermyn case. 66 Anderson, supra note 53, at 419–22; Stone, supra note 36, at 327–28. 67 Wolfram, supra note 44, at 160, 175. 68 From about 1770, this formulation took over from the previous “hath no issue” preamble. See Anderson, supra note 53, at 422. 69 Macqueen, supra note 36, at 485 (“The infidelity of the wife gives the husband a kind of right to have the marriage dissolved by a bill; and it is a right so well understood, that he obtains his divorce in this way as a matter of course.”). 70 Wolfram, supra note 44, at 157. 71 According to Sybil Wolfram, the upper classes obtained seventy-seven of the 116 divorces between 1750 and 1799. Id. at 163. Stuart Anderson suggests that the balance between the upper and middle classes shifted away from the aristocracy after 1750, but his analysis of the sixty-six petitioners between 1750 and 1780 discloses only peers, landed gentlemen, office holders, merchants, lawyers, clergy, and medical men, all of whom were almost certainly men of some means. Anderson, supra note 53, at 419–22. 72 Neither the Duke of Norfolk nor the Earl of Macclesfield had obtained an ecclesiastical separation first, and this was grounds for objection when their divorce petitions were debated in Parliament. 73 Macqueen, supra note 36, at 496–97. 74 Wolfram, supra note 44, at 159–60. 75 The first woman, a Mrs. Addison, brought her case in 1801. Previous relief for wives had been parliamentary declarations of nullity or bills of separation. See Macqueen, supra note 36, at 475. For details of Mrs. Addison’s case, see id. at 594–98. 76 Quoted in John Fraser Macqueen, A Practical Treatise on the Law of Marriage, Divorce, and Legitimacy, as Administered in the Divorce Court and in the House of Lords 182 (London, W. Maxwell 2d ed. 1860). 77 This test was formulated in Mrs. Turton’s case (1830–1831), which presented very similar facts to Mrs. Addison’s. See Macqueen, supra note 36, at 479. 78 Id. Once again, the language is taken from the Turton case. 79 This was in Mrs. Battersby’s case, summarized in id. at 667–68. 80 Id. at 480. 81 74 Geheimes Staatsarchiv Berlin, Materialien zum Allgemeinen Landrecht rep. 84, div. 16, no. 7, at 109–10 (on file with author). 82 For the Renovirte Constitution von Verlöbnis und Ehesachen of 1694, see Christian Otto Mylius, Corpus Constitutionum Marchicarum 117–22 (Berlin, Buchladen des Waysenhauses 1737). 83 In a first step, the waiting period that had to elapse before one could apply for a divorce on this ground was reduced from four years to one. In a second step, King Frederick I (1657–1713) decreed in 1704 that the first citation could be published forthwith (i.e., without any waiting period) and a divorce granted after a total of three citations spaced at six-week intervals. See Emil Friedberg, Beiträge zur Geschichte des Brandenburgisch-Preussischen Eherechts, 7 Zeitschrift für Kirchenrecht 56, 63–64 (1867). 84 4 Justus Henning Böhmer, Ius ecclesiasticum Protestantium, bk. 4, tit. 19, §§ 27–41 (Halle, Franckesche Stiftungen 4th ed. 1754). On the concept of infamia and its legal consequences, see Peter Landau, Die Entstehung des kanonischen Infamiebegriffs von Gratian bis zur Glossa Ordinaria (1962). 85 Böhmer, supra note 84, § 42; Richard Wilhelm Dove & Emil Sehling, Scheidungsrecht, evangelisches, in 21 Realencyklopädie für protestantische Theologie und Kirche 858, 874 (3d ed. 1908). 86 Aemilius Ludwig Richter, Beiträge zur Geschichte des Ehescheidungsrechts in der evangelischen Kirche 87 (Berlin, Verlag von Wiegandt und Grieben 1858). 87 Friedberg, supra note 83, at 59–63, 70. 88 Id. at 97–98. 89 Circulare an alle Inspectores, daß die Ehebruchs halber geschiedene Ehe-Leute mit denen Personen, mit welchen sie Ehebruch getrieben, nicht getrauet werden sollen, in 4 Novum Corpus Constitutionum Prussico-Brandenburgensium Praecipue Marchicarum 6617, 6781–82 (Berlin, Decker 1770). 90 Friedberg, supra note 83, at 97. 91 Circulare an das Cammer-Gericht, Reformirte Kirchen-Directorium, Neumärckische Regierung und Consistorium &c. wegen der Ehescheidung, in 1 Novum Corpus Constitutionum Prussico-Brandenburgensium Praecipue Marchicarum 1, 157–58 (Berlin, Faktoren der Königl. Preußischen Academie der Wissenschafften 1751). 92 Friedberg, supra note 83, at 103. 93 Edict gegen die Mißbräuche der überhand genommenen Ehescheidungen, in 7 Novum Corpus Constitutionum Prussico-Brandenburgensium Praecipue Marchicarum 669, 1614–40 (Berlin, Kunst 1782). 94 Quoted in 5 Wilhelm Bornemann, Systematische Darstellung des Preußischen Civilrechts mit Benutzung der Materialien des Allgemeinen Landrechts 208 n.1 (Berlin, Jonas Verlagsbuchhandlung 2d ed. 1845) (“Zu erkennen, daß man mit der Ehe nicht sogar facil sein muß, daß davon Mißbrauch entsteht, so wie man auf der anderen Seite auch nicht gar zu difficil sein muß, sonsten hindert das die Population. Denn sobald zwei Eheleute durchaus wider einander soweit aufgebracht und erzürnt sind, daß gar keine Vereinigung wieder zu hoffen steht, und die Gemüther in einer beständigen Erbitterung gegen einander verbleiben, so werden sie auch keine Kinder mit einander erzeugen, und das ist der Population zum Nachtheil. Dagegen wird ein solches Paar geschieden, und das Weib heirathet dann einen anderen Kerl, so kommen doch noch eher Kinder davon; Ihr müßt daher immer auf die Umstände sehen, und nur in dem Falle, wenn gar kein Vergleich und Wiederaussöhnung stattfinden und erwartet werden kann, die Scheidung geschehen lassen.”). 95 See Preamble to the Edict gegen die Mißbräuche der überhand genommenen Ehescheidungen, in 7 Novum Corpus Constitutionum Prussico-Brandenburgensium Praecipue Marchicarum, supra note 3, at 1614. 96 For the Landrecht’s divorce grounds, see Allgemeines Landrecht für die Preußischen Staaten von 1794, pt. 2, tit. 1, §§ 668–718b (Hans Hattenhauer ed., Luchterhand 2d ed. 1994) (1794). 97 The Landrecht was the only natural law code to make supervening non-culpable incapacity or illness a ground for divorce. The original Landrecht draft required the incapacity or illness to have preceded the marriage or to have been culpably contracted thereafter. See 1 Carl Gottlieb Svarez, Entwurf eines allgemeinen Gesetzbuches für die Preußischen Staaten, pt. 1, tit. 1, §§ 506, 520a, 520b (Peter Krause ed., Friedrich Frohmann 1996) (1784). 98 Quoted in Bornemann, supra note 94, at 198 (“Ein vernünftiger Mensch wird sich scheuen, mit ihnen Kinder zu erzeugen, und seine Nachkommen gleichen Unfällen auszusetzen; dem Staat und der menschlichen Gesellschaft selbst ist daran gelegen, daß solche Personen keine Nachkommenschaft hinterlassen.”). 99 Allgemeines Landrecht für die Preußischen Staaten von 1794, supra note 96, pt. 2, tit. 1, § 718a. The divorce was at the court’s discretion. 100 For the new provision, see id. at § 716. Its main contribution was to make consensual divorce available for couples whose children had died. 101 Dietmar Willoweit, Deutsche Verfassungsgeschichte: Vom Frankenreich bis zur Wiedervereinigung Deutschlands 181 (7th ed. 2013) 102 See, e.g., Conrad Bornhak, Preußische Staats- und Rechtsgeschichte 83–194 (1903). 103 Clark, supra note 9, at 63, 99, 113–14; Eckhart Hellmuth, Der Staat des 18. Jahrhunderts: England und Preußen im Vergleich, in Reformabsolutismus im Vergleich 5, 12–13 (Günter Birtsch ed., 1996); Achim Landwehr, Absolutismus oder »Gute Policey«? Anmerkungen zu einem Epochenkonzept, in Absolutismus, ein unersetzliches Forschungskonzept? 205, 207–20 (Lothar Schilling ed., 2008); Lothar Schilling, Vom Nutzen und Nachteil eines Mythos, in Absolutismus, ein unersetzliches Forschungskonzept?, supra, at 13, 13–19. Nicholas Henshall has even called for a new paradigm of early modern monarchy based on consensus and partnership. See generally Nicholas Henshall, The Myth of Absolutism (1992). 104 Beginning in the mid-seventeenth century, plenary assemblies of the corporate representatives of the provincial nobilities became increasingly rare. See Clark, supra note 9, at 63–64. When drafting the Landrecht, Frederick insisted on his sole legislative power. Resistance by the estates proved futile. See Peter Krause, Die Überforderung des aufgeklärten Absolutismus Preußens durch die Gesetzgebung: Zu den Hemmnissen auf dem Weg zum Allgemeinen Landrecht, in Reformabsolutismus und ständische Gesellschaft: Zweihundert Jahre Preußisches Allgemeines Landrecht 142, 178–79 (Günter Birtsch & Dietmar Willoweit eds., 1998). 105 Andreas Schwennicke, Die Entstehung der Einleitung des Preußischen Allgemeinen Landrechts von 1794, at 92 (1993) (noting a convergence of interests on the social, but not on the political rights of the aristocracy). 106 Willoweit, supra note 101, at 182–83; Krieger, supra note 8, at 305. It is believed that about three quarters of noble families in Brandenburg lived off their military or bureaucratic positions rather than their landed estates. See Theodor Schieder, Friedrich der Große: Ein Königtum der Widersprüche 75 (1983). 107 Krieger, supra note 8, at 131. 108 As Wolfgang Neugebauer has shown, it was one thing for the king to issue an edict and quite another for him to have it implemented on the ground. See Wolfgang Neugebauer, Absolutistischer Staat und Schulwirklichkeit in Brandenburg-Preussen 172–73 (1985). 109 7 Friedrich der Große, Die Werke Friedrichs des Großen 143 (1913) (noting that the aim of politics is “soweit möglich . . . die Zahl der Besitzungen, die Macht und das Ansehen . . . zu mehren”). 110 The name cameralism or cameralist science (Kameralismus/Kameralwissenschaft) was taken from the Latin camerarius (an administrator of the royal finances) because it originally was an educational path for the civil servants of the royal chamber. Albion Small has described the cameralists’ central tenets thus: “They saw in the welfare of the state the source of all other welfare. Their key to the welfare of the state was revenue to supply the needs of the state. Their whole social theory radiated from the central task of furnishing the state with ready means.” Albion W. Small, The Cameralists: The Pioneers of German Social Policy 5 (2001). 111 For the cameralist emphasis on population growth, see Werner Frauendienst, Christian Wolff als Staatsdenker 132 (1927); Martin Fuhrmann, Volksvermehrung als Staatsaufgabe? Bevölkerungs- und Ehepolitik in der deutschen politischen und ökonomischen Theorie des 18. und 19. Jahrhunderts 23–26 (2002); Justus Nipperdey, Die Erfindung der Bevölkerungspolitik 421–27 (2012) (calling the post-1750 period one of “high populationism”). 112 7 Friedrich der Große, supra note 109, at 21 (“Eines Staates Stärke beruht . . . im Reichtum seiner Einwohner und in ihrer Anzahl.”). 113 Id. at 215 (“Jeder Krieg ist ein Abgrund, der Menschen verschlingt. Man muß also auf eine möglichst hohe Bevölkerungszahl sehen. Daraus entspringt noch der weitere Vorteil, daß die Felder besser bebaut . . . werden.”). 114 Gerd Heinrich speaks of a breakthrough to active tolerance (“Durchbruch zur aktiven Toleranz”) after 1740. Gerd Heinrich, Geschichte Preußens: Staat und Dynastie 246 (1981). See also Hintze, supra note 26, at 93. More recent historiography has portrayed Prussian tolerance as a specific variant of confessionalization, with the church bureaucracy, while fostering the idea of mutual tolerance, engaged in avoiding confessional ambiguity and dividing subjects along clearly defined confessional lines. See Mathis Leibetseder, Alltag zwischen Konflikt und Toleranz: Beobachtungen zur Konfessionspolitik Brandenburg-Preußens im 18. Jahrhundert, 41 Zeitschrift für Historische Forschung 231 (2014). 115 7 der Große, supra note 109, at 149 (“Ich bin neutral zwischen Rom und Genf.”). 116 1 Friedrich der Große, Die Werke Friedrichs des Großen 201 (1913) (“[E]in Tyrann, der Länder entvölkert; die Toleranz ist eine zärtliche Mutter, die für ihr Wohlergehen und Gedeihen sorgt.”). 117 Prussia’s repeated interventions in the area of divorce were frequently traceable to Frederick himself. Even the Landrecht’s divorce provisions, which were drawn up by a team of draftsmen, were shaped by earlier royal ordinances, in particular the edict of 1782 and the cabinet order of 1783 (partially revoking the edict). 118 See Krieger, supra note 8, at 131. 119 The aristocracy received more special treatment in the Landrecht’s law of marital impediments. In particular, there was a (dispensable) impediment for status inequality for aristocratic men. For a brief synopsis of the marital impediments of the Landrecht, see Historischkritischer Kommentar zum bgb, supra note 12, at 399–400 (“V. Die Lösbarkeit der Ehe vom ALR (1794) bis zum BGB (1896)”). 120 The only exception was section 701 of the Landrecht. It provided that low-class couples should not be divorced for merely verbal or minor physical abuse. 121 Kurt Hinze, Die Bevölkerung Preußens im 17. und 18. Jahrhundert nach Quantität und Qualität, in 2 Moderne Preußische Geschichte, 1648–1947: Eine Anthologie 282, 282 (Otto Büsch & Wofgang Neugebauer eds., 1981). 122 Brandenburg-Prussia was the product of a union in 1618 between the Electorate of Brandenburg and the Duchy of Prussia. 123 Prussia acquired its first Catholic citizens in 1653, along with the Stift Halberstadt. The size of its Catholic population, while still under 5% in 1740, significantly increased over the course of the eighteenth century as a result of the country’s eastern expansion. See 1 Hans-Ulrich Wehler, Deutsche Gesellschaftsgeschichte 271 (1987). 124 1 Franz Förster & M.E. Eccius, Preußisches Privatrecht 16 (Berlin, Georg Reimer 6th ed. 1892). Before the Landrecht, courts in Prussia’s various provinces did not just apply different local marriage laws. They also seem to have practiced a “confessional system,” with different marital rules for Protestants and Catholics. The Kammergericht in Berlin, for example, reported to the Landrecht’s legislative commission that it had never admitted a claim for absolute divorce by a Catholic. See 5 Werner Schubert & Jürgen Regge, Quellen zur preußischen Gesetzgebung des 19. Jahrhunderts 69 (1985). 125 Tilman Repgen, Ius Commune, in Usus modernus pandectarum: Römisches Recht, Deutsches Recht und Naturrecht in der Frühen Neuzeit 157, 163 (Hans-Peter Haferkamp & Tilman Repgen eds., 2007). 126 The literature on how the ethics of the Age of Reason infiltrated the practice of the usus modernus, influencing positive law even without the detour of legislation, is vast. For a good synthetic treatment, see Klaus Luig, Der Einfluß des Naturrechts auf das positive Privatrecht im 18. Jahrhundert, 96 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung 38 (1979). See also Udo Wolter, Die Fortgeltung des kanonischen Rechts und die Haltung der protestantischen Juristen zum kanonischen Recht in Deutschland bis in die Mitte des 18. Jahrhunderts, in Canon Law in Protestant Lands, supra note 38, at 42. 127 Carl Gottlieb Svarez, Vorträge über Recht und Staat 599 (1960). Svarez’s view is confirmed by Peter Oestmann’s analysis of early modern court cases. See Peter Oestmann, Rechtsvielfalt vor Gericht (2002). 128 Koselleck, supra note 9, at 37–46. The idea of a common code of laws can be dated to approximately the time of the first outward sign of Prussia’s rise to greatness: its upgrade from Dukedom to Kingdom in 1701. However, the project was not successful until 1794. 129 1 Adhémar Esmein, Le mariage en droit canonique 72–73 (2d ed. 1929); Witte, supra note 13, at 95. 130 Luther built on Saint Paul’s notion in Romans 2:15 that even heathens had a law written on their hearts. See Dieter Schwab, Grundlagen und Gestalt der staatlichen Ehegesetzgebung in der Neuzeit bis zum Beginn des 19. Jahrhunderts 158–59 (1967); John Witte Jr., “The Law Written on the Heart”: Natural Law and Equity in Early Lutheran Jurisprudence, in The Legal Teachings of the Protestant and Catholic Reformations 231, 235–36 (Wim Decock et al. eds., 2014). Later Protestant thinkers were even more theocratic. See infra text accompanying notes 131–135. 131 For an early exponent, see Basilius Monner, De matrimonio brevis et methodica explicatio continens aliquot utiles quaestiones his temporibus frequentatas, et antea nunquam tractatas 51 (Frankfurt, Brubachius 1561). 132 4 Philip Schaff, New Schaff-Herzog Encyclopedia of Religious Knowledge 463 (1909). 133 7 Johann Georg Gerhard, Loci theologici 350 (Frankfurt, Hertel 1657) (“Christus expresse pronunciat. Omnis, qui dimiserit uxorem suam excepta fornicationis causa, adulterium committit, ejus contrarium Magistratus statuere nec potest nec debet.”). 134 See id. at 32. 135 Benedict Carpzov, Iurisprudentia Ecclesiastica Seu Consistorialis 282 (Leipzig, Ritzschius 1673); Michael Havemann, Gamologia synoptica istud est tractatus de iure connubiorum quatuor interstinctus libris 400 (Frankfurt, Görlin 1672); Johann Karl Naeve, Ius Coniugum, Oder das Ehe-Recht 54 (Chemnitz, Conrad Stöffeln 1716). 136 Willoweit, supra note 101, at 217; Diethelm Klippel & Louis Pahlow, Freiheit und aufgeklärter Absolutismus: Das Allgemeine Landrecht in der Geschichte der Menschen- und Bürgerrechte, in Reformabsolutismus und ständische Gesellschaft: Zweihundert Jahre Preußisches Allgemeines Landrecht, supra note 104, at 227, 237, 253; Christoph Link, Aufgeklärtes Naturrecht und Gesetzgebung: Vom Systemgedanken zur Kodifikation, in Reformabsolutismus und ständische Gesellschaf: Zweihundert Jahre Preußisches Allgemeines Landrecht, supra note 104, at 24, 45–46. Diethelm Klippel has identified an early (pre-1780) and a later (c. 1780–1850) secular natural law school in Germany, with the former enshrining a political theory of (enlightened) absolutism and the latter a more liberal political theory, which showed English, French, and American influences. See Diethelm Klippel, Politische Freiheit und Freiheitsrechte im deutschen Naturrecht des 18. Jahrhunderts 14–15, 81, 178–91 (1976). Andreas Schwennicke has found that the Landrecht was still largely devoid of liberal influences. See Schwennicke, supra note 105, at 10, 306–08. 137 This right had been recognized earlier by the Peace of Augsburg (1555). 138 Bernd Christian Schneider, Ius Reformandi (2001). 139 The aftermath of the Reformation witnessed a transition to polarization within Protestantism, with Lutheranism unambiguously defined in contrast to Calvinism. See Heinz Schilling, Religion, Political Culture and the Emergence of Early Modern Society: Essays in German and Dutch History 219–26 (1992). 140 Prussia had been poly-confessional since the early seventeenth century, with a Calvinist ruling family and a confessionally mixed population of Lutherans, Calvinists, and Catholics. See generally Bodo Nischan, Prince, People, and Confession: The Second Reformation in Brandenburg (1994). 141 Stephen Toulmin, Cosmopolis: The Hidden Agenda of Modernity 101 (1990). 142 On the deeply “practical” background of modern natural law theory as a means of overcoming confessional strife, see Detlef Döring, Samuel Pufendorf in der Welt des 17. Jahrhunderts 281–82 (2012); Andreas Thier, Konfessionalität und Recht: Historische Beobachtungen und konzeptionelle Überlegungen, in Recht und Konfession: Konfessionalität im Recht? 17, 26 (Christian Waldhoff ed., 2016). 143 For an exposition of that process, chiefly in relation to public law, see Schmoeckel, supra note 17, esp. at 276–302. 144 This calls for some qualification insofar as the Spanish late scholastics had already begun to purify natural law from theology at the time the modern natural lawyers began writing. See Kurt Seelmann, Theologie und Jurisprudenz an der Schwelle zur Moderne: Die Geburt des neuzeitlichen Naturrechts in der iberischen Spätscholastik 17, 35 (1997). 145 This mixing of natural law and the Bible goes all the way back to Gratian, if not further. Scholastic natural law received its most famous medieval formulation at the hands of Thomas Aquinas (c. 1225–1274), who treated natural law as a subset of divine law and grounded both in the eternal law, or the plan of divine wisdom God established for his creation. See Thomas Aquinas, Summa Theologica I−II, quaestio 93 art. 3, quaestio 95 art. 2. See generally B.C. Kuhlmann, Der Gesetzesbegriff beim Hl. Thomas von Aquin im Lichte des Rechtsstudiums seiner Zeit 140 (1912); Brian Tierney, The Idea of Natural Rights (1997); Rudolf Weigand, Die Naturrechtslehre der Legisten und Dekretisten von Irnerius bis Accursius und von Gratian bis Johannes Teutonicus 121–258 (1967). The Protestant version of natural law, as developed by people such as Johann Gerhard in the century after Luther, subjected the human legislator to the creation order of God, an institutional natural law that was believed to be expressed in the Bible. See Stephan Buchholz, Recht, Religion und Ehe: Orientierungswandel und gelehrte Kontroversen im Übergang vom 17. zum 18. Jahrhundert 26 (1988); Emil Weber, Die philosophische Scholastik des deutschen Protestantismus im Zeitalter der Orthodoxie 36–38 (1907); Hans Liermann, Zur Geschichte des Naturrechts in der evangelischen Kirche: Eine rechts- und geistesgeschichtliche Studie, in Festschrift Alfred Bertholet zum 80. Geburtstag 294, 296 (Walter Baumgartner et al. eds., 1950). 146 The German modern natural lawyers were preceded in this endeavor by the Spanish late scholastics (see supra note 144) and the Dutchman Hugo Grotius. 147 Samuel von Pufendorf, Specimen controversiarum circa Jus Naturale ipsi nuper motarum, in Eris scandica, qua adversus libros de jure naturali et gentium objecta diluuntur 193, 208 (Frankfurt, Knoch 1686) (translated by author). 148 According to Pufendorf, “since [modern] natural law does not extend where reason cannot reach, it would be inappropriate to try to deduce natural law from the uncorrupted nature of man.” Samuel von Pufendorf, On the Duty of Man and Citizen According to Natural Law 10 (James Tully ed., Cambridge Univ. Press 1991) (1673). Lutheran scholastic orthodoxy, by contrast, derived the natural law from the paradisiacal status integritatis of man. See Ernst-Dietrich Osterhorn, Die Naturrechtslehre Valentin Albertis: Ein Beitrag zum Rechtsdenken der lutherischen Orthodoxie des 17. Jahrhunderts 6, 21, 36 (1962) (unpublished Ph.D. dissertation, Freiburg University) (on file with the Freiburg University Library). 149 Schmoeckel, supra note 17. See also Andreas Thier, Dogmatik und Hierarchie: Die Vernunftrechtslehre, in Dogmatisierungsprozesse in Recht und Religion 217, 223 (Georg Essen & Nils Jansen eds., 2011). 150 Samuel von Pufendorf, De Jure Naturae et Gentium bk. 6, ch. 1, § 7 (Lund, Adam Junghans 1672). 151 Pufendorf’s role in the process of secularization is accordingly a subject of dispute, with some scholars stressing his deep Lutheran (almost Pietist) convictions. See, e.g., Döring, supra note 142, esp. at 283–85, 293–300. See also Historischkritischer Kommentar zum BGB, supra note 12, at 353 (“III. Eheauflösung in der Reformation und Gegenreformation”). 152 Thomasius was something of an idol to his German contemporaries and near-contemporaries. Historians commonly identify him as the progenitor of the German Zeitalter der Aufklärung, and his importance for Germany’s intellectual history has been compared to that of John Locke for England’s. See Thomas Ahnert, Religion and the Origins of the German Enlightenment 1 (2006). For background on him, see Christian Thomasius (1655–1728): Gelehrter Bürger in Leipzig und Halle (Heiner Lück ed., 2008). Thomasius was and still is little known outside the German-speaking world, although some of his work has recently become available in English. See, e.g., Christian Thomasius, Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations (Thomas Ahnert ed. & trans., Liberty Fund 2011) (1688). Moreover, English speakers might find references to him in Timothy Hochstrasser, Natural Law Theories in the Early Enlightenment 111–49 (2000); Leonard Krieger, The German Idea of Freedom: History of a Political Tradition 59–66 (1972); Andreas Thier, History and the Justification of Governmental Authority and Individual Rights in the Age of John Locke and Samuel Pufendorf, in Law and Authority in British Legal History, 1200–1900, at 192, 205–06 (Mark Godfrey ed., 2016); and Simone Zurbuchen, From Denominationalism to Enlightenment: Pufendorf, Le Clerc, and Thomasius on Toleration, in Religious Toleration 191, 199–204 (John Christian Laursen ed., 1999); see also Ahnert, supra, and Barnard’s two chapters: Frederick M. Barnard, The “Practical Philosophy” of Christian Thomasius, in Grotius, Pufendorf, and Modern Natural Law 311 (Knud Haakonssen ed., 1999); Frederick M. Barnard, Fraternity and Citizenship: Two Ethics of Mutuality in Christian Thomasius, in Grotius, Pufendorf, and Modern Natural Law, supra, at 337. 153 4 Christian Thomasius, Ausgewählte Werke, bk. 3, pt. 2 (Werner Schneiders ed., Georg Olms 2001) (1688). 154 On the development generally, see Schwab, supra note 130, at 192. 155 Reported in 2 Samuel v. Cocceji, Ius Civile Controversum 177–87 (Frankfurt, Weidmann 1740). 156 See, e.g., Johann Heinrich Gottlob von Justi, Rechtliche Abhandlung von denen Ehen, die an und vor sich selbst ungültig und nichtig sind § 10 (Leipzig, Breitkopf 1757). 157 18 Christian Thomasius, Ausgewählte Werke, bk. 1, pt. 5, §§ 3, 35 (Werner Schneiders ed., Georg Olms 2003) (1705). 158 Id. § 40. 159 Id. §§ 37, 38. On this development, see Buchholz, supra note 145, at 56; Hochstrasser, supra note 152, at 132–34; Christoph Link, Herrschaftsordnung und bürgerliche Freiheit: Grenzen der Staatsgewalt in der älteren deutschen Staatslehre 121–22 (1979). 160 Thomasius, supra note 157, bk. 3, pt. 3, §§ 35, 37. 161 Krieger, supra note 8, at 247. Assessments of Frederick’s character are mixed. At one end of the spectrum, he has been described as “cynical, arid, inhuman, misanthropic.” Thomas Mann, Frederick the Great and the Grand Coalition: An Abstract for the Hour, in Three Essays 143, 159 (H.T. Lowe-Porter trans., Alfred Knopf 1929). Works at the opposite end of the spectrum are at times almost hagiographical. See, e.g., David Fraser, Frederick the Great: King of Prussia (2000); Gerd Heinrich, Friedrich II. von Preußen: Leistung und Leben eines großen Königs (2009). 162 Krieger, supra note 8, at 246. According to Günter Birtsch, Frederick, apart from his personal thirst for knowledge, which was genuinely “enlightened,” used Aufklärung only for his absolutist goals. See Günter Birtsch, Aufgeklärter Absolutismus oder Reformabsolutismus?, in Reformabsolutismus im Vergleich, supra note 103, at 103. 163 This is true even of Frederick’s militarist father, Frederick William I, who was formally a Calvinist, but whose religious views actually came close to Pietism. It has been suggested that one of the reasons why Frederick William’s rule never degenerated into downright tyranny (despite his violent temper) was his “deeply rooted conviction that one day he would have to account for his deeds to his maker.” H.W. Koch, A History of Prussia 80 (1978). 164 Krieger, supra note 8, at 241. 165 At age thirteen, Frederick’s religious views were already unorthodox and critical. Two years later, his religious instructors had to admit defeat. Despite his father’s attempt to prevent his move toward irreligion by doubling the amount of religious instruction he received, Frederick’s apostasy was unstoppable. See Schieder, supra note 106, at 28. 166 der Große, supra note 109, at 149 (“im Grunde nur ein bürgerlicher Vertrag”). 167 Frederick immersed himself in the details of government. As he put it, “in einem Staate wie Preußen ist es durchaus notwendig, daß der Herrscher seine Geschäfte selbst führt.” Although the high level of personal involvement may have been partly due to Frederick’s mistrust of his officials, its main motivation was the conviction that sound government required a single rational mind behind it. In Frederick’s words, “ein System kann . . . nur aus einem Kopfe entspringen; also muß es aus dem des Herrschers hervorgehen.” Id. at 153–54. 168 As I pointed out above (supra text accompanying note 108), whether he could also enforce them on the ground is a different matter. 169 Martin Greschat, Orthodoxie und Pietismus: Einleitung, in Orthodoxie und Pietismus 7, 9–10 (Martin Greschat ed., 1982). 170 Pietism was a movement within Lutheranism that began in the late seventeenth century and reached its zenith in the mid-eighteenth century. The literature on Pietism is vast. For an introduction, see generally 1 Martin Brecht et al., Geschichte des Pietismus (1993). For the link between Pietism and the spread of Enlightenment ideas, see Klaus Schlaich, Gesammelte Aufsätze: Kirche und Staat von der Reformation bis zum Grundgesetz 248 (1997); Heinrich, supra note 26, at 342. 171 This was owing to Frederick the Great’s deliberate practice of favoring rationalist candidates for appointment. Clark, supra note 9, at 136, 269. 172 1 Johann David Michaelis, Mosaisches Recht 264 (Reutlingen, Grözinger 1793) (“[I]hr Zwek ist nicht, und soll nicht seyn, alles moralisch böse mit obrigkeitlicher Gewalt zu hindern.”). 173 See, e.g., Thomas Ertman, Explaining Variation in Early Modern State Structure: The Cases of England and the German Territorial States, in Rethinking Leviathan: The Eighteenth-Century State in Britain and Germany, supra note 9, at 23, 32. 174 See Paul Langford, A Polite and Commercial People: England, 1727–1783, at 5 (1989); Roy Porter, English Society in the Eighteenth Century 109 (rev. ed. 1990). 175 Rule, supra note 9, at 23. 176 Lawrence Stone & Jeanne C. Fawtier Stone, An Open Elite? England, 1540–1880, at 407 (1984). Indeed, the supposed egalitarianism of their legal system—the English law’s refusal to distinguish between aristocrat and commoner, the rich and the poor—was a matter of immense pride to the English (and of admiration to foreigners). John Brewer & John Styles, An Ungovernable People: The English and Their Law in the Seventeenth and Eighteenth Centuries 14 (1980). 177 Porter, supra note 174, at 50–51; Rule, supra note 9, at 50–52. The foothills were easier to climb. 178 Porter, supra note 174, at 116. 179 After the death of Queen Anne in 1714, George I ascended the British throne as the first monarch of the House of Hanover. He was succeeded by his son George II, who ruled from 1727 until 1760 and was the last British monarch born outside Britain. George II’s grandson George III ruled from 1760 until 1820. 180 Porter, supra note 174, at 61, 114; A.S. Turberville, The House of Lords in the XVIIIth Century 480 (1927). 181 See Jeremy Black, George II: Puppet of the Politicians? 144–46, 195, 258–59 (2007); John B. Owen, George II Reconsidered, in Statesmen, Scholars and Merchants: Essays in Eighteenth-Century History Presented to Dame Lucy Sutherland 113 (Anne Whiteman et al. eds., 1973). 182 Turberville, supra note 180, at 416. 183 Porter, supra note 174, at 66. 184 Id. at 114; Rule, supra note 9, at 33–36. 185 In 1701, the Commons passed a resolution dictating that it was a high infringement of the liberties and privileges of the Commons for a Lord of Parliament to concern himself with the election of any Commons member. This resolution, however, was widely disregarded. See Turberville, supra note 180, at 456. 186 John Cannon, Aristocratic Century: The Peerage of Eighteenth-Century England 106–07 (1984). 187 They were numerically dominant throughout the century, making up approximately half of the lower house. Turberville, supra note 180, at 482. 188 By common law, noble status applied only to the peer himself. Younger sons—and even the eldest son until he inherited the title—were technically commoners and therefore sat in the Commons, if at all. 189 A borough was a town that usually elected two members. The franchise for borough seats varied enormously. The ostensibly most democratic boroughs, i.e., the ones in which virtually all adult male homeowners could vote, tended to be venal or controlled by aristocratic patrons. John Brooke, The House of Commons, 1754–1790: Introductory Survey 13–17 (1968). 190 Rule, supra note 9, at 99. 191 Economic historians have long drawn attention to the general tendency of eighteenth-century English legislation to protect “the private interests of wealthy and powerful stakeholders.” David Lemmings, Law and Government in England During the Long Eighteenth Century: From Consent to Command 179 (2011). For the same argument, see Cannon, supra note 186, at 11; Paul Langford, Public Life and the Propertied Englishman, 1689–1798, at 139 (1991); Julian Hoppit, Patterns of Parliamentary Legislation, 1660–1800, 39 Hist. J. 109, 116 (1996). 192 Hoppit, supra note 191, at 123. 193 Id. at 116. See also Langford, supra note 191, at 139; Lemmings, supra note 191, at 149. 194 Frederic William Maitland, The Constitutional History of England: A Course of Lectures Delivered 382–83 (1909). 195 See Stone, supra note 36, esp. at 312, 327–28. See also the sources cited supra note 62. 196 Episcopal opposition had petered out by the end of the seventeenth century. The eighteenth-century Lords’ journals record no protest by bishops when divorce bills came before the House. Arthur Robert Winnett, Divorce and Remarriage in Anglicanism 129 (1958). 197 Id. at 130. 198 Roderick Philipps, Putting Asunder: A History of Divorce in Western Society 232 (1988). 199 The Toleration Act of 1689, 1 W. & M. c. 18, allowed freedom of worship to Protestant dissenters, but not to Catholics. 200 10 William S. Holdsworth, A History of English Law 605 (1966). 201 O’Gorman, supra note 9, at 169. The Act for Preserving the Protestant Religion of 1711, 10 Ann. c. 6, sought to outlaw the practice of occasional conformity, but was repealed in 1719. 202 Alan D. Gilbert, Religion and Society in Industrial England: Church, Chapel and Social Change, 1740–1914, at 27 (1976); Rule, supra note 9, at 93. 203 O’Gorman, supra note 9, at 312; Rebecca Probert, Marriage Law and Practice in the Long Eighteenth Century: A Reassessment 164 (2009). The confessional state did not come under serious pressure until the final decades of the eighteenth century, when the new Methodist and other dissenting denominations began to rival the appeal of the Anglican Church and the numbers of Catholics swelled through French and Irish immigration. See Rule, supra note 9, at 93. 204 Christoph Strohm, Die produktive Kraft konfessioneller Konkurrenz für die Rechtsentwicklung, in Reformation und Recht: Ein Beitrag zur Kontroverse um die Kulturwirkungen der Reformation 131, 132 (Christoph Strohm ed., 2017). 205 John Locke, Two Treatises of Government 153–56 (Mark Goldie ed., J.M. Dent 1993). 206 This is not uncontroversial. Andreas Thier has stressed the continuities with medieval traditions in Locke’s ideas on the state of nature. See Andreas Thier, History and the Justification of Governmental Authority and Individual Rights in the Age of John Locke and Samuel Pufendorf, in Law and Authority in British Legal History, 1200–1900, at 196, 201 (Mark Godfrey ed., 2016). And Jeremy Waldron has argued that religious premises cannot be bracketed out of Locke’s theory of basic equality in the Two Treatises in that this theory “makes no sense except in the light of a particular account of the relation between man and God.” Jermey Waldron, God, Locke, and Equality: Christian Foundations in Locke’s Political Thought 82 (2002). 207 What Locke said in the Treatises was significantly qualified by his non-political writings, and particularly his theological ones. Locke’s contribution (like that of the German natural lawyers), therefore, consisted not so much in the fact that he formulated a radical model of marriage (although he did just that in the Treatises) as in the fact that he isolated the natural law discourse on marriage, by separating it out from the state’s positive law, on the one hand, and from marriage theology, on the other. 208 Locke, supra note 205, at 155 (emphasis added). 209 For Hobbes, there were “no authentical doctrines concerning right and wrong, good and evil, besides the constituted laws in each realm.” Thomas Hobbes, Man and Citizen 98 (Bernard Gert ed., Hackett 1991) (1642). See also Thomas Hobbes, Leviathan: Or, the Matter, Forme and Power of a Commonwealth Ecclesiasticall and Civil 342–44 (Michael Oakeshott ed., Basil Blackwell 1955) (1651). 210 In applying the term “English Revolution” to the entire period from 1640 to 1689, I am following Harold J. Berman’s slightly unorthodox periodization in Law and Revolution II. See Berman, supra note 17, at 205, 208. For a similar argument that the two seventeenth-century revolutions should be seen “as part of a linked process of revolution that . . . cumulatively had a major impact on politics, political thought, and the constitution”: see Mark Knights, The Long-Term Consequences of the Revolution: State Formation, Political Culture, and Ideology, in The Oxford Handbook of the English Revolution 518, 518 (Michael J. Braddick ed., 2015) (emphases in original). 211 The affiliation is usually apparent from the works’ titles, which typically describe their subject-matter as “natural law,” “moral philosophy,” or “principles of morality” (in Latin or English). 212 One notable exception is the Scottish advocate, judge, and writer Henry Home, Lord Kames (1696–1782), who published his Essays on the Principles of Morality and Natural Religion in 1751. For background on him, see Michael Lobban, A History of the Philosophy of Law in the Common Law World, 1600–1900, at 114–21 (2016). If I were forced to account for the almost complete absence of (in particular English) jurists from the forefront of British natural law thought in the seventeenth and eighteenth centuries, I would be inclined to fall back on a commonplace observation: the fact that, unlike German jurists, English lawyers were practically trained and never saw the inside of a university. Although, as Richard Helmholz has noted, what happened in the inns makes it appear likely that most active English barristers would have come into at least minimal contact with the law of nature (chiefly through observation of trials and private reading), natural law “would not have been a primary focus of their study, and much of what they were required to master . . . would have been quite far removed from large questions involving the moral purposes of law.” Richard H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice 90 (2015). Such practical training as English lawyers received was chiefly designed to produce advocates and did not encourage pure legal theorizing of the natural law type. The greater number of lawyers in the Scottish Enlightenment (as exemplified by Henry Home) may be due to the fact that Scottish law has strong historical connections with the continent. Many Scottish lawyers undertook their law studies at continental universities, and from the early eighteenth century, they were able to obtain instruction in civil and Scottish law at universities at home. See Anand C. Chitnis, The Scottish Enlightenment: A Social History 23, 78–80 (1976). 213 James More, Francis Hutcheson (1694–1746), Oxford Dictionary of National Biography (2004). Hutcheson came from a long line of Presbyterian ministers. He seems to have come close at one point to accepting a charge in the Church of Ireland (a province of the Anglican communion). 214 John Gascoigne, Thomas Rutherforth (1712–1771), Oxford Dictionary of National Biography, supra note 213. 215 James E. Crimmins, William Paley (1743–1805), Oxford Dictionary of National Biography, supra note 213. 216 Witte, supra note 13, at 290, 300; Barbara Modersohn, Die englische Eheauffassung im 18. Jahrhundert 18, 24 (1965) (Ph.D. dissertation, Würzburg University) (on file with the Würzburg University Library). 217 William Paley, The Principles of Moral and Political Philosophy 187–89 (Liberty Fund 2002) (1785). 218 For obvious reasons, arguments from sacramentum were not open to British moralists. But they, too, rather like Aquinas, supplemented their friendship- and fairness-based reasoning by invoking what John Witte has argued was the Anglican replacement for the Catholic sacramental model of marriage: the concept of marriage as a little commonwealth, productive of a variety of indispensable social goods. See Witte, supra note 13, esp. at 218–19. 219 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 27–31 (Athlone Press 1970) (1780) (claiming that natural and divine laws are either ultimately reducible to utility or “a cloak . . . to despotism”—that is, a pious pretence for imposing one’s own preferences on others). 220 1 Jeremy Bentham, Bentham’s Theory of Legislation: Being Principes de Législation and Traités de Législation, Civile et Pénale 1, 90 (Humphrey Milford 1914) (1802); David Hume, Enquiries Concerning Human Understanding and Concerning Principles of Morals 306 (Clarendon Press 1975) (1748, 1751). 221 For Hume’s views on marriage, see in particular David Hume, Of Polygamy and Divorces, in 1 Essays and Treatises on Several Subjects 189 (London, T. Cadell 1772). For an exposition of Bentham’s views on marriage, see Mary Sokol, Bentham, Law and Marriage: A Utilitarian Code of Law in Historical Contexts (2011). 222 Hume, supra note 221, at 192–93. 223 Bentham, supra note 220, at 294. Although marriage for life was his recommendation, Bentham, unlike Hume, was prepared to countenance consensual and fault divorce on the basis of an analogy with service contracts. Id. at 295. 224 6 William S. Holdsworth, A History of English Law 411 (1966). 225 Both Pocock and Berman have shown that the English Revolution presented itself as restorative rather than revolutionary and that it tried to solve fundamental questions not by appeal to abstract concepts, but rather to the existing laws of the country and to the reverence that these enjoyed by reason of their antiquity. See Berman, supra note 17, at 207, 226 (pointing out that the revolution sought its legitimacy in “the myth of an unbroken continuity” between “ancient rights and liberties” and modern constitutional limitations); J.G.A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century 17 (1987). 226 Clark, supra note 9, at xxiii. 227 Edmund Burke, Reflections on the Revolution in France and on the Proceedings in Certain Societies in London Relative to that Event 141 (Conor Cruise O’Brien ed., Penguin Books 1969) (1790). 228 In 1745, Bonnie Prince Charlie led a Jacobite rebellion that got all the way to Derby. After this attempt, however, 1689 seemed secure. 229 O’Gorman, supra note 9, at 127. In fact, Bentham was worried that the focus on the significance of constitutional balance would predispose people against upsetting this balance and act as a barrier to the use of government for social reform. See Craig Smith, Forms of Government, in The Oxford Handbook of British Philosophy in the Eighteenth Century 530, 547 (James A. Harris ed., 2013). 230 Pocock, supra note 225, at 18. 231 David Lieberman, Codification, Consolidation, and Parliamentary Statute, in Rethinking Leviathan: The Eighteenth-Century State in Britain and Germany, supra note 9, at 359. 232 Pocock, supra note 225, at 29. 233 Id. at 19. 234 For a critique of Wieacker and his work, see Franz Wieacker: Historiker des modernen Privatrechts (Okko Behrends & Eva Schumann eds., 2010). 235 This is the central argument in Wieacker, supra note 4. © The Author(s) [2021]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. 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TI - A Tale of Two Countries: Divorce in England and Prussia, 1670–1794
JO - American Journal of Comparative Law
DO - 10.1093/ajcl/avab005
DA - 2021-06-04
UR - https://www.deepdyve.com/lp/oxford-university-press/a-tale-of-two-countries-divorce-in-england-and-prussia-1670-1794-pCTYyrA0LP
SP - 1
EP - 1
VL - Advance Article
IS - 
DP - DeepDyve
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