Chapter 22

[202]As by the Brandenburg ordinance of 1540:ibid., I, 330; that of Pfalz-Neuburg:ibid., II, 146, 147.[203]As by the ordinance of Zurich, 1529:ibid., I, 22; that of Basel, 1529:ibid., 126.Cf.Goeschen,Doctrina de mat., 63 n. 218, 29 n. 105.[204]Bidembach,De causis mat.(Frankfort, 1608), 81-93; andMentzer,De conjugio(Wittebergae, 1612), 190 ff., allow as causes only adultery and desertion. Other representatives of the conservative tendency in the seventeenth century, as enumerated byRichter,Beiträge, 58 ff., are the theologians Gerhard, Havemann, Calovius, and Hollaz, and the jurists Cypräus, Carpzov, Nicolai, Brunnemann, and Schilter; while the more liberal direction is taken by the theologians Brochmand, Hülsemann, Calixtus (J. U.), Dannhauer, and Quenstedt, and the jurists Henning Arnisaeus, Forster, Kitzel, Pufendorf, Samuel Stryk, and Bruckner.[205]For the ordinance of 1553, drafted by Brenz, seeRichter,Kirchenordnungen, II, 130. By this act full divorce is allowed only for adultery and desertion, including refusal of marital duty: and separationa thoro et mensais not permitted even forsaevitia.Cf.Richter,Beiträge, 57.[206]SeeDes Herzogthums Wirtemberg erneuerte Ehe- und Ehe-Gerichts-Ordnung(Stuttgart, 1687), 22 ff., 82 ff., 100-111.[207]Hülsemann,Extensio breviarii theologici(3d ed., Leipzig, 1655), 502: cited byHubrich,Das Recht der Ehescheidung, 54-56, 119 ff.;Richter,Beiträge, 57, 63;idem,Kirchenrecht, 1177.[208]Stölzel,Ueber das landesherrl. Ehescheidungsrecht, 9-19; or the same inZKR., XVIII, 1-4;Dietrich,Evang. Ehescheidungsrecht, 39.[209]Stölzel,op. cit., 10, 11.[210]Schulte,Lehrbuch, 416.[211]Stölzel,op. cit., 11-19, where the proof is given from the writings of Luther and others; andDietrich,Evang. Ehescheidungsrecht, 37 ff. SeeStrampff, 363-65, 353, 375.[212]Luther,Von Ehesachen: inStrampff, 297, 298, 392, where he namesPfarrerandOberkeitas co-ordinate authorities in such causes. On the significance ofOberkeit(temporal magistracy) seeStölzel,Entwicklung des gelehrten Richterthums, I, 207 ff.; and compareidem,Ueber das landesherrl. Ehescheidungsrecht, 22, 23.[213]On the rise of the Wittenberg consistory and its influence as a model for others seeMejer, "Anfänge des Witt. Consistoriums,"ZKR., XIII, 28-123; andidem, "Zur Geschichte des ält. prot. Eherechts,"ibid., XVI, 35-106. These two papers, revised and enlarged, with a chapter on the establishment of the consistory at Rostock, may also be found inMejer'sZum Kirchenrechte des Reformationsjahrhunderts, 3 ff., 146 ff. CompareSchleusner, "Zu den Anfängen prot. Eherechts,"ZKG., VI, 390 ff., 412 ff.;Geffcken, "Zur ält. Geschichte und ehegericht. Praxis des Leipzig. Konst.,"ZKR., 3. Folge, IV, 7-67;Hinschius, "Beiträge zur Gesch. des Desertionsprocesses nach evang. Kirchenrechte,"ibid., II, 1-38; andDietrich,Evang. Ehescheidungsrecht, 37-62, who gives a clear account of the development of matrimonial process and jurisdiction.[214]According toStölzel,Ueber das landesherrl. Ehescheidungsrecht, 46 ff.,passim, after the creation of consistories, as well as before, the head of the state—Landesherr—retained a right of dispensation assummus episcopus; and in Protestant lands his power to grant divorces in certain cases was not entirely superseded by the imperial law of 1875. These points, especially the last, have given rise to a controversial literature: seeMeurer,Das landesh. Ehescheidungsrecht, 12 ff., who holds that the authority of theLandesherrwas superseded by the act of 1875; and compareHubrich,Das Recht der Ehescheidung, 147 ff.; the works cited byStölzel,op. cit., 54 ff.; byMeurer,op. cit., 8 ff.; and those in this connection described in Bibliographical Note XI.[215]See the proofs presented byRichter,Beiträge, 46-50; and chap, ix, p. 390, above.[216]Richter,op. cit., 43 ff., cites several cases as evidence. On the other hand, the Wittenberg decisions analyzed byMejer,Zum Kirchenrechte, 196 ff.; and those published bySchleusner, "Zu den Anfängen prot. Eherechts,"ZKG., XIII, 130 ff., 142 ff., follow mainly the conservative direction. In this connection read the "Antwort auff etliche Fragen und Gegenwurff" inSarcerius,Vom heil. Ehestande, 204 ff.; or inidem,Corpus juris mat., 248 ff.[217]Cf.Lecky,Democracy and Liberty, II, 200;Glasson,Le mariage civil et le divorce, 310, 311; andidem,Histoire du droit, V, 89 ff.[218]Jeaffreson,Brides and Bridals, II, 316. This summary really gives the gist ofMilton'sargument in his "Doctrine and Discipline of Divorce,"Prose Works, III, 169-273.[219]The Christen State of Matrimonye, lvs. lxxvi, lxxvii.[220]Master Henry Smith,Preparation to Marriage: quoted byJeaffreson,Brides and Bridals, II, 294, note.[221]Cf., for example,Becon's"Catechism,"Works, II, 647; and his "Prayers,"ibid., III, 532;Tyndale,Expositions, 51, 52; Bucer inMilton'sProse Works, III, 299, 300, who grants this cause to both parties.[222]Hooper's teaching caused great excitement: see the letter ofJohn ab UlmistoBullinger, inOriginal Letters relating to English Reformation, 416. Bullinger is said to hold the same views:ibid., 422. At his trial one of the charges against Hooper was that he taught that the bond of wedlock may be dissolved for adultery:Hooper,Later Writings, xxiii.[223]Hooper,Early Writings, 382-87, declares, on the authority of Mark 10:12, that the woman as well as the man may divorce for adultery. To those who deny this according to the Mosaic law he says: "I grant the same, but I am sure the poor woman was not compelled to live with her adulterous husband; for the law commanded such a villain to be slain, and so put the honest party to liberty; and so should it be now-a-days, and then the question of divorcement would be ended" (383). Again, to those who say if woman had this right "marriage could never be sure nor constant, for women would change still at their pleasure," he replies, "there is given no such liberty to man or woman by the word of God," meaning, doubtless, separation at pleasure, except for cause established in court. In a letter to Henry Bullinger he defends his doctrine of divorce as to the woman:Original Letters rel. to English Reformation, 64.[224]Tyndale,Expositions, 54, 55. A similar illustration of the straits to which the Protestant was brought in his necessity of appealing to authority is afforded by Bucer, inMilton'sProse Works, III, 309: "Hither may be added, that the Holy Spirit grants desertion to be a cause of divorce, in those answers given to the Corinthians.... But some will say, that this is spoken of a misbeliever departing. But I beseech ye, doth not he reject the faith of Christ in his deeds, who rashly breaks the holy covenant of wedlock instituted by God? And besides this, the Holy Spirit does not make the misbelieving of him who departs, but the departing of him who disbelieves, to be the just cause of freedom to the brother or sister. Since therefore it will be agreed among Christians, that they who depart from wedlock without just cause, do not only deny the faith of matrimony, but of Christ also, whatever they profess with their mouths; it is but reason to conclude, that the party deserted is not bound in case of causeless desertion, but that he may lawfully seek another consort, if it be needful to him, toward a pure and blameless conversation."Cf. also the argument ofMilton, "The Doctrine and Discipline of Divorce,"Prose Works, III, 258, 259.[225]Bucer, inMilton'sProse Works, III, 302, 303, 292, 293, 306-8. By some of his brethren he was regarded as a fanatic on this subject as the following letter fromJohn BurchertoHenry Bullingershows: "Strasburgh, June 8, 1550: Bucer is more than licentious on the subject of marriage. I heard him once disputing at table upon this question, when he asserted that a divorce should be allowed for any reason, however trifling; so that he is considered, not without cause, by our bishop of Winchester as the author of the book published in defence of the Landgrave. I am ignorant as to what the hireling Bucer, who fled from this church before the wolf came in sight, is plotting in England."—Original Letters rel. to the Eng. Ref., 655, 656."Philip, landgrave of Hesse, in addition to Christina, the daughter of the late duke George, to whom he had been united many years, and by whom he had a large family, married on March 3, 1540, a lady named Margaret de Sala, and this with the consent of the landgravine under her own hand and seal. Previous to this he sought to obtain the sanction of Luther, Melanchthon, and Bucer, whose want of firmness in this painful case has called forth the most violent invectives from Vorillas and Bossuet, bishop of Meaux."—Ibid., 666, note.[226]Mal. 2:15, 16, which in the James version is given: "Therefore take heed to your spirit, and let none deal treacherously against the wife of his youth. For the Lord, the God of Israel, saith that he hateth putting away: for one covereth violence with his garment," etc. It may be noted thatMilton, "Doctrine and Discipline of Divorce,"Prose Works, III, 196, following "Calvin and the best translations," renders the passage from Malachi, "he who hates, let him divorce," thus agreeing essentially with Bucer.[227]Bucer, inMilton,Prose Works, III, 297.Cf.Jeaffreson,Brides and Bridals, II, 329-32, who believes that these sentiments of Bucer, however shocking to us, were accepted by the most "virtuous and devout" in the sixteenth and seventeenth centuries.[228]By 32 H. VIII, c. 38.Cf.Reeves,Hist. of Eng. Law, IV, 333-36;Glasson,Hist. du droit, V, 89.On Henry VIII.'s divorce seePocock,Records of the Reformation: The Divorce, 1527-1553, containing the original documents;Burnet,Hist. of the Reformation, I, 26-123;Geary,Marriage and Family Relations, 596-602;Thwing,The Family, 87;Woolsey,Divorce, 168, 169;Jeaffreson,Brides and Bridals, I, 114, 124; II, 312 ff., who defends the king on the ground that the pope did not grant him the indulgence which private citizens constantly enjoyed, especially when they were able to pay for it. There is a valuable bibliography of Henry's divorce inHuth,Marriage of Near Kin, 404-11.[229]By 2 and 3 Ed. VI, c. 23.[230]By 3 and 4 Ed. VI, c. 11.Cf.the account byJeaffreson,op. cit., II, 317, 318.[231]The report was published in 1571 under supervision of Archbishop Parker; and then in an Oxford reprint of 1850:Woolsey,Divorce, 170, note. I have followed the excellent summary byJeaffreson, partly containing the Latin text:op. cit., II, 318-23; andReeves,Hist. of Eng. Law, V, 74-80, gives a good analysis.Cf.alsoHallam,Const. Hist., I, 101, 102, note;Lingard,Hist. of England, IV, 284;Hammick,Marriage Law, 6;Geary,Marriage and Family Relations, 8 n. 6, 578;Report of the Divorce Commission, Parl. Papers, 1852-53, 4;Report of the Ecc. Courts Comm., 1883, xxxi-xxxiii, xxxvi;Bishop,Marriage, Divorce, and Separation, I, § 1496;Macqueen,Practical Treatise(London, 1842), 467;Law Review(English), I, 356-58;Burn,Ecc. Law, II, 503 ff.;Lecky,Democracy and Liberty, II, 175;Luckock,Hist. of Marriage, 175, 176;Morgan,Marriage, Adultery, and Divorce, II, 227-29.[232]See chap. x, sec. i, pp. 421-23 above.[233]Jeaffreson,op. cit., II, 322.[234]"Inter conjuges si capitales intercedant inimicitiae tamque vehementer exarserint, ut alter alterum aut insidiis aut venenis appellat, aut aliqua vel aperta vi, vel occulta peste, vitam velit eripere, quamprimum tam horribile crimen probatum fuerit, rite in juditio divortio volumus hujuscemodi personas distrahi."—Ref. leg. ecc.: ap.Jeaffreson,op. cit., II, 320, 321, note.[235]"Parva contentiones, nisi perpetuae sint, divortium non inducunt."—Ref. leg. ecc.: ap.Jeaffreson,op. cit., II, 321.[236]Jeaffreson,op. cit., II, 321.[237]Ibid., 322, 323.[238]Geary,Marriage and Family Relations, 8 n. 6.[239]So by Sir John Stoddart in his evidence before the Lords' Select Committee, 1844: "Therefore I apprehend that theReformatio legumhaving been published as a work of authority, although not of absolute legislative authority, it must have been, and in all probability was, followed: and for that reasonin the Spiritual Courts there were dissolutions of marriage. BecauseI believe that from about the year 1550 to the year 1602 marriage was not held by the Church, and therefore was not held by the Law, to be indissoluble."—Minutes of Evidence, 27:Law Review(Eng.), I, 358, 359.[240]Law Review(Eng.), I, 359.Cf.Jeaffreson,op. cit., II, 323.[241]Jeaffreson,op. cit., II, 323, 324. Cranmer examined the Fathers and other authorities on divorce for adultery; and the material which he thus collected grew into a large book, which Burnet, who gives a summary, says he has seen:Hist. of Reformation, I, 330 ff. Burnet's summary is also given byGeary,Marriage and Family Relations, 577, 578.Cf.Macqueen,Practical Treatise, 468, 469.[242]5 and 6 Ed. VI., c. 4.[243]Macqueen,op. cit., 469. "This bill is often, but erroneously, referred to as the earliest example of parliamentary divorce (Shelford, 373). It is not a divorce bill; neither did it proceed upon the principle of a divorce bill. Its object was merely to declare that the adultery of the first wife, followed by the ecclesiastical sentence, entitled the Marquis to take a second wife. The principle on which the act passed assumed the jurisdiction of the Church Court, to dissolve the marriageproprio vigore. The act did not divorce the parties, but merely declared them to bealready, by the ecclesiastical sentence, sufficiently divorced to admit of the Marquis marrying again."—Ibid., 469 n.e. On this case see alsoLaw Review(Eng.), I, 358, 359;Report of the Royal Commission on Divorce, Parl. Papers, 1853, 57 ff.;Geary,op. cit., 17;Woolsey,Divorce, 169-71;Lecky,Democracy and Liberty, II, 174, 175;Burn,Ecc. Law, II, 503a-503b;Reeves,Hist. of Eng. Law, V, 80, 81;Morgan,Marriage, Adultery, and Divorce, II, 229 ff.[244]According to theReport of the Commissioners, 1852-3, 5, divorce was allowed during the period 1550-1602.[245]See, however,Woolsey,Divorce, 170, 171, 313, who, insisting that the ancient canon law was unchanged, remarks that "for a number of years, although remarriage after divorce was null and void, so that the issue would not be legitimate, no civil penalties were attached to it, and it was punishable only by ecclesiastical censures." Hence many married "without scruple."Cf.Craik,Romance of the Peerage, I, Appendix, upon whom Woolsey relies; andJeaffreson,Brides and Bridals, II, 323, 324, who holds that the decision of the delegates in the Northampton case was "good law" until 1602.[246]Bunny,Of Divorce for Adulterie, and Marrying againe: that there is no sufficient Warrant so to do(Oxford, 1610). This book had been written many years before. The preface is dated Dec. 13, 1595; and in it Bunny refers to the state of public opinion and to events, notably in Yorkshire, of a still earlier time. In "a Sermon," he says: "I breefly noted, that the libertie, that in these our daies many doe take, of divorcing their wiues for adulterie and marying of others, had not such warrant in the worde of God as they thought that it had." Just before delivering this discourse a gentleman who desired to put away his wife for adultery and marry again, "and having already gotten (into a little paper-book of his) the handes of sundrie of the Preachers of those parts," had come to him for similar support. He further notes that "a few yeeres" earlier not less than "fowre several persons" of one of the greatest families in "those parts" had married again after divorce; and in general his "Advertisement to the Reader" leaves the impression that the new doctrine was, on the whole, the prevailing one; although, according to law, "neither those second women were allowed any dowrie, nor their children to be legitimate."[247]Whitgift, "Defence of the Answer,"Works, III, 267 ff.Cf.Bullinger,Decades, IV (V), 511.[248]These ordinances are known as the "Ecclesiastical Constitutions" of 1597. Canon 105 urges greater care in matrimonial causes, especially in cases where marriage "is required to bedissolvedorannulled;" and it is strictly charged "that in all proceedings indivorceandnullities of marriage, good circumspection and advice be used, and that the truth may, as far as possible, be sifted out by depositions of witnesses and other lawful proofs; and that credit be not given to the sole confession of the parties themselves, howsoever taken upon oath either within or without the court." The 107th canon requires a bond to be given in case of "sentences pronounced only for divorce and separationà thoro et mensâ," that "the parties so separated shall live chastely, and neither shall they, during each other's life, contract matrimony with other persons." From these canons it has been inferred with some plausibility that both "dissolving divorce" and "nullifying divorce" are contemplated as valid and customary; and that the requiring of a bond implies that the marriage which the bond is intended to prevent would have been valid: seeLaw Review(Eng.), I, 359, 360, and the opinions there cited; alsoPlea for an Alteration in the Divorce Laws(London, 1831), 3 ff.[249]The Foljambe case has given rise to much controversy. It is commonly regarded as marking the formal abandonment of the more liberallawof the Reformation period and a return to canonical principles. This view is mainly traceable to the statements ofSalkeld,Reports of Cases in the King's Bench(Philadelphia, 1822, from 6th London ed.), III, 137, who commits several errors, and is otherwise misleading. He is followed byJeaffreson,Brides and Bridals, II, 324;Geary,Marriage and Family Relations, 12;Macqueen,Practical Treatise, 470, 471;Harrison,Probate and Divorce, 115; and especiallyBishop,Marriage and Divorce(5th ed.), I, §§ 661, 705. On the other hand,Woolsey,Divorce, 172, note, 310-13, following the researches ofCraik,Romance of the Peerage, I, Appendix, regards the decision as merely confirming existing law. He criticises Bishop for being misled by Salkeld, whereas the facts appear to be more correctly given inNoy'sReports, 100; and particularly inMoore'sCases(2d ed. folio, London, 1688), 683, which may be translated from the law-French as follows: "Feb. 13,anno44 Eliz. In the Star Chamber it was declared by all the court, that whereas Foljambe was divorced from his first wife for incontinence of the woman [in fact, for his own adultery], and afterwards had married Sarah Poge [Page], daughter of Rye, in his former wife's life-time, this was a void marriage, the divorce beinga mensa et thoro, and nota vinculo matrimonii. And John Whitgift, then Archbishop of Canterbury, said that he had called to himself at Lambeth the most sage divines and civilians, and that they had all agreed therein." It is concluded, therefore, that this decision of the "sage divines and civilians" must have been incidental to a case under trial in the Star Chamber, and that the law was merely declared and not changed. See, however, the sixth edition ofBishop'swork, I, § 1498 n. 3, where the author insists on the essential correctness of his original view.Cf. alsoLaw Review(Eng.), I, 361, 362;Report of the Commissioners(Divorce), 1852-53, 4-6; andMorgan,Marriage, Adultery, and Divorce, II, 233.[250]Law Review(Eng.), I, 362. One of these canons "provided that no persons separateda toro et mensashould, during their joint lives, contract matrimony with other persons, and that the parties requiring the sentence of divorce should give sufficient caution and security into the court that they would not transgress this restraint. Another canon required the judge who should grant divorce, without observing these rules, to be suspended for one year by the archbishop or bishop, and declared his sentence utterly void."—Woolsey,Divorce, 171, 172.Cf.Luckock,Hist. of Marriage, 177 n. 2;Morgan,Marriage, Adultery, and Divorce, II, 233 ff.[251]By the act of 1 James I., c. xi, "bigamy" is used in the modern sense. In mediæval law a "bigamist" is one who marries againafterhis first wife's death; the word "polygamist" being employed for the person who takes another womanbeforethe death of the first spouse. By 4 Ed. I., 1276 (Stat. de bigamis,Stat. at Large[Pickering], I, 116), benefit of clergy is denied him who is a bigamist,i. e., has contracted a second marriage after death of the first wife:Jeaffreson,Brides and Bridals, II, 327. CompareGlasson,Hist. du droit, III, 184, 185."As for the crime of polygamy [the modern bigamy], it hath not been made penal by any statute, till the time of James the First. A canon of Pope Gregory the Tenth had taken away all clerical privileges from a bigamist, as the marrying a second wife was considered by the ecclesiastical law, to be proof of a most incontinent disposition; this regulation having been adopted in England, the clergy had a doubt, whether a person, who had been guilty of this offence before the canon law took place, might claim the indulgence of the common law; this statute [4 Ed. I.], therefore, retrospectively declares, he shall not be entitled to such privilege."—Barrington,Observations upon the Statutes(4th ed., London, 1775), 106; alsoJeaffreson,op. cit., II, 327, note. But it may be noted that by 1 Ed. VI., c. 12, sec. 16:Stat. at Large(Pickering), V, 265, 266, benefit of clergy is restored in terms which may leave it in doubt whether bigamy in the modern sense is intended. This privilege is granted to offenders, "although they or any of them have been divers and sundry times married to any single woman or single women, or to any widow or widows, or to two wives or more." On the ancient meaning of "bigamy" see alsoGlasson,op. cit., III, 184.[252]1 James I., c. xi:Stat. at Large(Pickering), VII, 88, 89.However, inferences as to the law in the preceding period must be made with caution. The case of Stephensv.Totty, decided at the Michaelmas term, 44 and 45 Eliz., shows that a husband and a wife divorceda mensa et thorowere still married:Croke'sReports(Elizabeth), 908.Cf.on this act especiallyHale,Hist. of the Pleas of the Crown(London, 1800), I, 691-93; alsoWoolsey,Divorce, 171;Law Review(Eng.), I, 362. Furthermore,Raynolds, a strong advocate of absolute divorce, in hisDefence of the Judgment of the Reformed Churches(1609), appears to make no claim that his doctrine is sustained either by law or custom. So also in the quaint treatise,The Lawes Resolutions of Women's Rights(London, 1632), 64 ff., full divorce is not recognized; although, referring to the fact that legally "no crime dissolueth marriage," the compiler (67) seemingly approves Conrad Lagus who says, "seeing that in Contracts of Wedlock we regard as well what is decent and conuenient, as what is lawfull, I cannot tell why we be not bound in dissoluing of it to follow the like equitie; and for example, if a Wife cannot dwell with her husband without manifest danger of death ... why may not she be separated iudicis ordinarij cognitione precedente?"On the other hand,Spence,Equitable Jurisprudence, I, 702, believes that the bond not to marry required by the canons of 1603 was the only hindrance to remarriage after divorce; and from this time onward he thinks it "not unlikely that the court of chancery decreed divorcesa vinculo; and that the American courts of equity brought this doctrine (or right) with them." This view is rejected byScribner,Treatise on the Law of Dower, II, 545-47, although he agrees as to the effect of the bond.[253]Porter's case, Easter term, 12 C. I.:Croke'sReports(Charles I.), 461-63.[254]See the strong argument of Holburn and Grimston for the defendant who justly claim that a "divorcecausa saevitiaeis groundedex jure naturae, and is in the same manner and nature as a divorcecausae adulterii:Croke'sReports(Charles I.), 463.Hale,Hist. of Pleas of the Crown, I, 693, remarks "certainly the divorce intended" by James's act "is nota vinculo matrimonii;" and then further observes, in Porter's case "it was doubted, whether a divorcecausâ saevitiaewere such a divorce as was within this exception, because it seemed rather to be a provisional separation for the wife's safety and maintenance, than a divorce; but it was never resolved."Cf.alsoCo. Lit., 235;March,Reports of New Cases, 101;Coke,Institutes, III, 89;Kelyng,Report of Divers Cases(Dublin, 1789), 27;Geary,Marriage and Family Relations, 12.[255]Jeaffreson,Brides and Bridals, II, 315, perhaps with too much emphasis, thus describes the effects of 32 H. VIII., c. 38: "It rendered wedlock easier of entrance, but closed all the many gates which had hitherto afforded spouses the means of escape from conjugal wretchedness.... The Elizabethan jest, that compared matrimony to a public rout, was no less applicable to wedlock in Catholic than to marriage in Protestant England; but whereas our ancestors before the Reformation could always get out of the press by a few permissible falsehoods and the payment of money, the marriage law of Protestant times declared that, having once forced their way into the crowd, they should remain in it till death came to their relief."[256]His four principal works dealing with divorce are the "Doctrine and Discipline of Divorce" (Prose Works, III, 169-273); supplemented by "The Judgment of Martin Bucer" (ibid., 274-314); "Tetrachordon" (ibid., 315-433); and the "Colasterion" (ibid., 434-61). See alsoProse Works, IV, 243-49; I, 259.[257]Milton, "Doctrine and Discipline of Divorce,"Prose Works, III, 241, 242.[258]Milton, "Colasterion,"Prose Works, III, 423-33, where the views of many reformers are quoted; and "Doctrine and Discipline of Divorce,"ibid., 251-58, where Jesus's words are examined.[259]Milton, "Colasterion,"Prose Works, III, 425.[260]Milton, "Doctrine and Discipline of Divorce,"Prose Works, III, 185.[261]The doctrine of indissolubility compels uncongenial minds to "fadge together, and combine as they may to their unspeakable wearisomeness, and despair of all sociable delight in the ordinance which God hath established to that very end.... All which we can refer justly to no other author than the canon law and her adherents, not consulting with charity, the interpreter and guide of our faith, but resting in the mere element of the text; doubtless by the policy of the devil to make that gracious ordinance become unsupportable, that what with men not daring to venture upon wedlock, and what with men wearied out of it, all inordinate licence might abound."—"Doctrine and Discipline of Divorce,"Prose Works, III, 181.[262]Ibid., 210, 211, 195. For similar expressions seeibid., 181, 182, 185, 267.[263]However, chap. xxxiv ofBucer'swork, entitled "That it is lawful for a wife to leave an adulterer, and to marry another husband," Milton disposes of with the remark that "this is generally granted, and therefore excuses me the writing out": "The Judgment of Martin Bucer,"Prose Works, III, 300. But this must be considered in connection with his positive claim of entire jurisdiction for the man in divorce causes, below referred to. Occasionally he drops a word from which possibly it may be inferred that he believes in a reciprocal right of the sexes; but it is amazing how adroitly he avoids a direct statement to that effect.Cf., for example, "Doctrine and Discipline of Divorce,"Prose Works, III, 182, where he seems to approve the liberal laws of the Christian emperors;ibid., 247-49, where he refers to Beza's view that divorce is for the benefit of the woman; "Tetrachordon,"Prose Works, III, 359, 372, where he touches lightly upon the mutual rights of husband and wife.[264]Milton, "Doctrine and Discipline of Divorce,"Prose Works, III, 181. "And what his chief end was of creating woman to be joined with man, his own instituting words declare, and are infallible to inform us what is marriage, and what is no marriage; unless we can think them set there to no purpose: 'It is not good,' saith he, 'that man should be alone. I will make him a help meet for him.'"—Ibid., 187. Beza holds, says Milton, that divorce (by the Jewish law) is created "only for the help of wives." This leads him to exclaim: "Palpably uxorious! Who can be ignorant, that woman was created for man, and not man for woman, and that a husband may be injured as insufferably in marriage as a wife! What an injury is it after wedlock not to be loved! What to be slighted! What to be contended with in point of house rule who shall be the head; not for any parity of wisdom, for that were something reasonable, but out of a female pride! 'I suffer not,' saith St. Paul, 'the woman to usurp authority over the man.' If the apostle could not suffer it, into what mould is he mortified that can?"—Ibid., 247;cf.alsoibid., 209.[265]Jeaffreson,Brides and Bridals, II, 333. He was not solely actuated by irritation against his wife, Mary Powell, whom he had put away; for he retained his views after taking her back and to his life's end:ibid., II, 333.[266]ForMilton'stheory of divorce procedure, as summarized in the text, see "Doctrine and Discipline of Divorce,"Prose Works, III, 263-73.Cf.Jeaffreson,Brides and Bridals, II, 335-38.

[202]As by the Brandenburg ordinance of 1540:ibid., I, 330; that of Pfalz-Neuburg:ibid., II, 146, 147.

[203]As by the ordinance of Zurich, 1529:ibid., I, 22; that of Basel, 1529:ibid., 126.Cf.Goeschen,Doctrina de mat., 63 n. 218, 29 n. 105.

[204]Bidembach,De causis mat.(Frankfort, 1608), 81-93; andMentzer,De conjugio(Wittebergae, 1612), 190 ff., allow as causes only adultery and desertion. Other representatives of the conservative tendency in the seventeenth century, as enumerated byRichter,Beiträge, 58 ff., are the theologians Gerhard, Havemann, Calovius, and Hollaz, and the jurists Cypräus, Carpzov, Nicolai, Brunnemann, and Schilter; while the more liberal direction is taken by the theologians Brochmand, Hülsemann, Calixtus (J. U.), Dannhauer, and Quenstedt, and the jurists Henning Arnisaeus, Forster, Kitzel, Pufendorf, Samuel Stryk, and Bruckner.

[205]For the ordinance of 1553, drafted by Brenz, seeRichter,Kirchenordnungen, II, 130. By this act full divorce is allowed only for adultery and desertion, including refusal of marital duty: and separationa thoro et mensais not permitted even forsaevitia.Cf.Richter,Beiträge, 57.

[206]SeeDes Herzogthums Wirtemberg erneuerte Ehe- und Ehe-Gerichts-Ordnung(Stuttgart, 1687), 22 ff., 82 ff., 100-111.

[207]Hülsemann,Extensio breviarii theologici(3d ed., Leipzig, 1655), 502: cited byHubrich,Das Recht der Ehescheidung, 54-56, 119 ff.;Richter,Beiträge, 57, 63;idem,Kirchenrecht, 1177.

[208]Stölzel,Ueber das landesherrl. Ehescheidungsrecht, 9-19; or the same inZKR., XVIII, 1-4;Dietrich,Evang. Ehescheidungsrecht, 39.

[209]Stölzel,op. cit., 10, 11.

[210]Schulte,Lehrbuch, 416.

[211]Stölzel,op. cit., 11-19, where the proof is given from the writings of Luther and others; andDietrich,Evang. Ehescheidungsrecht, 37 ff. SeeStrampff, 363-65, 353, 375.

[212]Luther,Von Ehesachen: inStrampff, 297, 298, 392, where he namesPfarrerandOberkeitas co-ordinate authorities in such causes. On the significance ofOberkeit(temporal magistracy) seeStölzel,Entwicklung des gelehrten Richterthums, I, 207 ff.; and compareidem,Ueber das landesherrl. Ehescheidungsrecht, 22, 23.

[213]On the rise of the Wittenberg consistory and its influence as a model for others seeMejer, "Anfänge des Witt. Consistoriums,"ZKR., XIII, 28-123; andidem, "Zur Geschichte des ält. prot. Eherechts,"ibid., XVI, 35-106. These two papers, revised and enlarged, with a chapter on the establishment of the consistory at Rostock, may also be found inMejer'sZum Kirchenrechte des Reformationsjahrhunderts, 3 ff., 146 ff. CompareSchleusner, "Zu den Anfängen prot. Eherechts,"ZKG., VI, 390 ff., 412 ff.;Geffcken, "Zur ält. Geschichte und ehegericht. Praxis des Leipzig. Konst.,"ZKR., 3. Folge, IV, 7-67;Hinschius, "Beiträge zur Gesch. des Desertionsprocesses nach evang. Kirchenrechte,"ibid., II, 1-38; andDietrich,Evang. Ehescheidungsrecht, 37-62, who gives a clear account of the development of matrimonial process and jurisdiction.

[214]According toStölzel,Ueber das landesherrl. Ehescheidungsrecht, 46 ff.,passim, after the creation of consistories, as well as before, the head of the state—Landesherr—retained a right of dispensation assummus episcopus; and in Protestant lands his power to grant divorces in certain cases was not entirely superseded by the imperial law of 1875. These points, especially the last, have given rise to a controversial literature: seeMeurer,Das landesh. Ehescheidungsrecht, 12 ff., who holds that the authority of theLandesherrwas superseded by the act of 1875; and compareHubrich,Das Recht der Ehescheidung, 147 ff.; the works cited byStölzel,op. cit., 54 ff.; byMeurer,op. cit., 8 ff.; and those in this connection described in Bibliographical Note XI.

[215]See the proofs presented byRichter,Beiträge, 46-50; and chap, ix, p. 390, above.

[216]Richter,op. cit., 43 ff., cites several cases as evidence. On the other hand, the Wittenberg decisions analyzed byMejer,Zum Kirchenrechte, 196 ff.; and those published bySchleusner, "Zu den Anfängen prot. Eherechts,"ZKG., XIII, 130 ff., 142 ff., follow mainly the conservative direction. In this connection read the "Antwort auff etliche Fragen und Gegenwurff" inSarcerius,Vom heil. Ehestande, 204 ff.; or inidem,Corpus juris mat., 248 ff.

[217]Cf.Lecky,Democracy and Liberty, II, 200;Glasson,Le mariage civil et le divorce, 310, 311; andidem,Histoire du droit, V, 89 ff.

[218]Jeaffreson,Brides and Bridals, II, 316. This summary really gives the gist ofMilton'sargument in his "Doctrine and Discipline of Divorce,"Prose Works, III, 169-273.

[219]The Christen State of Matrimonye, lvs. lxxvi, lxxvii.

[220]Master Henry Smith,Preparation to Marriage: quoted byJeaffreson,Brides and Bridals, II, 294, note.

[221]Cf., for example,Becon's"Catechism,"Works, II, 647; and his "Prayers,"ibid., III, 532;Tyndale,Expositions, 51, 52; Bucer inMilton'sProse Works, III, 299, 300, who grants this cause to both parties.

[222]Hooper's teaching caused great excitement: see the letter ofJohn ab UlmistoBullinger, inOriginal Letters relating to English Reformation, 416. Bullinger is said to hold the same views:ibid., 422. At his trial one of the charges against Hooper was that he taught that the bond of wedlock may be dissolved for adultery:Hooper,Later Writings, xxiii.

[223]Hooper,Early Writings, 382-87, declares, on the authority of Mark 10:12, that the woman as well as the man may divorce for adultery. To those who deny this according to the Mosaic law he says: "I grant the same, but I am sure the poor woman was not compelled to live with her adulterous husband; for the law commanded such a villain to be slain, and so put the honest party to liberty; and so should it be now-a-days, and then the question of divorcement would be ended" (383). Again, to those who say if woman had this right "marriage could never be sure nor constant, for women would change still at their pleasure," he replies, "there is given no such liberty to man or woman by the word of God," meaning, doubtless, separation at pleasure, except for cause established in court. In a letter to Henry Bullinger he defends his doctrine of divorce as to the woman:Original Letters rel. to English Reformation, 64.

[224]Tyndale,Expositions, 54, 55. A similar illustration of the straits to which the Protestant was brought in his necessity of appealing to authority is afforded by Bucer, inMilton'sProse Works, III, 309: "Hither may be added, that the Holy Spirit grants desertion to be a cause of divorce, in those answers given to the Corinthians.... But some will say, that this is spoken of a misbeliever departing. But I beseech ye, doth not he reject the faith of Christ in his deeds, who rashly breaks the holy covenant of wedlock instituted by God? And besides this, the Holy Spirit does not make the misbelieving of him who departs, but the departing of him who disbelieves, to be the just cause of freedom to the brother or sister. Since therefore it will be agreed among Christians, that they who depart from wedlock without just cause, do not only deny the faith of matrimony, but of Christ also, whatever they profess with their mouths; it is but reason to conclude, that the party deserted is not bound in case of causeless desertion, but that he may lawfully seek another consort, if it be needful to him, toward a pure and blameless conversation."Cf. also the argument ofMilton, "The Doctrine and Discipline of Divorce,"Prose Works, III, 258, 259.

[225]Bucer, inMilton'sProse Works, III, 302, 303, 292, 293, 306-8. By some of his brethren he was regarded as a fanatic on this subject as the following letter fromJohn BurchertoHenry Bullingershows: "Strasburgh, June 8, 1550: Bucer is more than licentious on the subject of marriage. I heard him once disputing at table upon this question, when he asserted that a divorce should be allowed for any reason, however trifling; so that he is considered, not without cause, by our bishop of Winchester as the author of the book published in defence of the Landgrave. I am ignorant as to what the hireling Bucer, who fled from this church before the wolf came in sight, is plotting in England."—Original Letters rel. to the Eng. Ref., 655, 656."Philip, landgrave of Hesse, in addition to Christina, the daughter of the late duke George, to whom he had been united many years, and by whom he had a large family, married on March 3, 1540, a lady named Margaret de Sala, and this with the consent of the landgravine under her own hand and seal. Previous to this he sought to obtain the sanction of Luther, Melanchthon, and Bucer, whose want of firmness in this painful case has called forth the most violent invectives from Vorillas and Bossuet, bishop of Meaux."—Ibid., 666, note.

"Philip, landgrave of Hesse, in addition to Christina, the daughter of the late duke George, to whom he had been united many years, and by whom he had a large family, married on March 3, 1540, a lady named Margaret de Sala, and this with the consent of the landgravine under her own hand and seal. Previous to this he sought to obtain the sanction of Luther, Melanchthon, and Bucer, whose want of firmness in this painful case has called forth the most violent invectives from Vorillas and Bossuet, bishop of Meaux."—Ibid., 666, note.

[226]Mal. 2:15, 16, which in the James version is given: "Therefore take heed to your spirit, and let none deal treacherously against the wife of his youth. For the Lord, the God of Israel, saith that he hateth putting away: for one covereth violence with his garment," etc. It may be noted thatMilton, "Doctrine and Discipline of Divorce,"Prose Works, III, 196, following "Calvin and the best translations," renders the passage from Malachi, "he who hates, let him divorce," thus agreeing essentially with Bucer.

[227]Bucer, inMilton,Prose Works, III, 297.Cf.Jeaffreson,Brides and Bridals, II, 329-32, who believes that these sentiments of Bucer, however shocking to us, were accepted by the most "virtuous and devout" in the sixteenth and seventeenth centuries.

[228]By 32 H. VIII, c. 38.Cf.Reeves,Hist. of Eng. Law, IV, 333-36;Glasson,Hist. du droit, V, 89.On Henry VIII.'s divorce seePocock,Records of the Reformation: The Divorce, 1527-1553, containing the original documents;Burnet,Hist. of the Reformation, I, 26-123;Geary,Marriage and Family Relations, 596-602;Thwing,The Family, 87;Woolsey,Divorce, 168, 169;Jeaffreson,Brides and Bridals, I, 114, 124; II, 312 ff., who defends the king on the ground that the pope did not grant him the indulgence which private citizens constantly enjoyed, especially when they were able to pay for it. There is a valuable bibliography of Henry's divorce inHuth,Marriage of Near Kin, 404-11.

[228]By 32 H. VIII, c. 38.Cf.Reeves,Hist. of Eng. Law, IV, 333-36;Glasson,Hist. du droit, V, 89.

On Henry VIII.'s divorce seePocock,Records of the Reformation: The Divorce, 1527-1553, containing the original documents;Burnet,Hist. of the Reformation, I, 26-123;Geary,Marriage and Family Relations, 596-602;Thwing,The Family, 87;Woolsey,Divorce, 168, 169;Jeaffreson,Brides and Bridals, I, 114, 124; II, 312 ff., who defends the king on the ground that the pope did not grant him the indulgence which private citizens constantly enjoyed, especially when they were able to pay for it. There is a valuable bibliography of Henry's divorce inHuth,Marriage of Near Kin, 404-11.

[229]By 2 and 3 Ed. VI, c. 23.

[230]By 3 and 4 Ed. VI, c. 11.Cf.the account byJeaffreson,op. cit., II, 317, 318.

[231]The report was published in 1571 under supervision of Archbishop Parker; and then in an Oxford reprint of 1850:Woolsey,Divorce, 170, note. I have followed the excellent summary byJeaffreson, partly containing the Latin text:op. cit., II, 318-23; andReeves,Hist. of Eng. Law, V, 74-80, gives a good analysis.Cf.alsoHallam,Const. Hist., I, 101, 102, note;Lingard,Hist. of England, IV, 284;Hammick,Marriage Law, 6;Geary,Marriage and Family Relations, 8 n. 6, 578;Report of the Divorce Commission, Parl. Papers, 1852-53, 4;Report of the Ecc. Courts Comm., 1883, xxxi-xxxiii, xxxvi;Bishop,Marriage, Divorce, and Separation, I, § 1496;Macqueen,Practical Treatise(London, 1842), 467;Law Review(English), I, 356-58;Burn,Ecc. Law, II, 503 ff.;Lecky,Democracy and Liberty, II, 175;Luckock,Hist. of Marriage, 175, 176;Morgan,Marriage, Adultery, and Divorce, II, 227-29.

[232]See chap. x, sec. i, pp. 421-23 above.

[233]Jeaffreson,op. cit., II, 322.

[234]"Inter conjuges si capitales intercedant inimicitiae tamque vehementer exarserint, ut alter alterum aut insidiis aut venenis appellat, aut aliqua vel aperta vi, vel occulta peste, vitam velit eripere, quamprimum tam horribile crimen probatum fuerit, rite in juditio divortio volumus hujuscemodi personas distrahi."—Ref. leg. ecc.: ap.Jeaffreson,op. cit., II, 320, 321, note.

[235]"Parva contentiones, nisi perpetuae sint, divortium non inducunt."—Ref. leg. ecc.: ap.Jeaffreson,op. cit., II, 321.

[236]Jeaffreson,op. cit., II, 321.

[237]Ibid., 322, 323.

[238]Geary,Marriage and Family Relations, 8 n. 6.

[239]So by Sir John Stoddart in his evidence before the Lords' Select Committee, 1844: "Therefore I apprehend that theReformatio legumhaving been published as a work of authority, although not of absolute legislative authority, it must have been, and in all probability was, followed: and for that reasonin the Spiritual Courts there were dissolutions of marriage. BecauseI believe that from about the year 1550 to the year 1602 marriage was not held by the Church, and therefore was not held by the Law, to be indissoluble."—Minutes of Evidence, 27:Law Review(Eng.), I, 358, 359.

[240]Law Review(Eng.), I, 359.Cf.Jeaffreson,op. cit., II, 323.

[241]Jeaffreson,op. cit., II, 323, 324. Cranmer examined the Fathers and other authorities on divorce for adultery; and the material which he thus collected grew into a large book, which Burnet, who gives a summary, says he has seen:Hist. of Reformation, I, 330 ff. Burnet's summary is also given byGeary,Marriage and Family Relations, 577, 578.Cf.Macqueen,Practical Treatise, 468, 469.

[242]5 and 6 Ed. VI., c. 4.

[243]Macqueen,op. cit., 469. "This bill is often, but erroneously, referred to as the earliest example of parliamentary divorce (Shelford, 373). It is not a divorce bill; neither did it proceed upon the principle of a divorce bill. Its object was merely to declare that the adultery of the first wife, followed by the ecclesiastical sentence, entitled the Marquis to take a second wife. The principle on which the act passed assumed the jurisdiction of the Church Court, to dissolve the marriageproprio vigore. The act did not divorce the parties, but merely declared them to bealready, by the ecclesiastical sentence, sufficiently divorced to admit of the Marquis marrying again."—Ibid., 469 n.e. On this case see alsoLaw Review(Eng.), I, 358, 359;Report of the Royal Commission on Divorce, Parl. Papers, 1853, 57 ff.;Geary,op. cit., 17;Woolsey,Divorce, 169-71;Lecky,Democracy and Liberty, II, 174, 175;Burn,Ecc. Law, II, 503a-503b;Reeves,Hist. of Eng. Law, V, 80, 81;Morgan,Marriage, Adultery, and Divorce, II, 229 ff.

[244]According to theReport of the Commissioners, 1852-3, 5, divorce was allowed during the period 1550-1602.

[245]See, however,Woolsey,Divorce, 170, 171, 313, who, insisting that the ancient canon law was unchanged, remarks that "for a number of years, although remarriage after divorce was null and void, so that the issue would not be legitimate, no civil penalties were attached to it, and it was punishable only by ecclesiastical censures." Hence many married "without scruple."Cf.Craik,Romance of the Peerage, I, Appendix, upon whom Woolsey relies; andJeaffreson,Brides and Bridals, II, 323, 324, who holds that the decision of the delegates in the Northampton case was "good law" until 1602.

[246]Bunny,Of Divorce for Adulterie, and Marrying againe: that there is no sufficient Warrant so to do(Oxford, 1610). This book had been written many years before. The preface is dated Dec. 13, 1595; and in it Bunny refers to the state of public opinion and to events, notably in Yorkshire, of a still earlier time. In "a Sermon," he says: "I breefly noted, that the libertie, that in these our daies many doe take, of divorcing their wiues for adulterie and marying of others, had not such warrant in the worde of God as they thought that it had." Just before delivering this discourse a gentleman who desired to put away his wife for adultery and marry again, "and having already gotten (into a little paper-book of his) the handes of sundrie of the Preachers of those parts," had come to him for similar support. He further notes that "a few yeeres" earlier not less than "fowre several persons" of one of the greatest families in "those parts" had married again after divorce; and in general his "Advertisement to the Reader" leaves the impression that the new doctrine was, on the whole, the prevailing one; although, according to law, "neither those second women were allowed any dowrie, nor their children to be legitimate."

[247]Whitgift, "Defence of the Answer,"Works, III, 267 ff.Cf.Bullinger,Decades, IV (V), 511.

[248]These ordinances are known as the "Ecclesiastical Constitutions" of 1597. Canon 105 urges greater care in matrimonial causes, especially in cases where marriage "is required to bedissolvedorannulled;" and it is strictly charged "that in all proceedings indivorceandnullities of marriage, good circumspection and advice be used, and that the truth may, as far as possible, be sifted out by depositions of witnesses and other lawful proofs; and that credit be not given to the sole confession of the parties themselves, howsoever taken upon oath either within or without the court." The 107th canon requires a bond to be given in case of "sentences pronounced only for divorce and separationà thoro et mensâ," that "the parties so separated shall live chastely, and neither shall they, during each other's life, contract matrimony with other persons." From these canons it has been inferred with some plausibility that both "dissolving divorce" and "nullifying divorce" are contemplated as valid and customary; and that the requiring of a bond implies that the marriage which the bond is intended to prevent would have been valid: seeLaw Review(Eng.), I, 359, 360, and the opinions there cited; alsoPlea for an Alteration in the Divorce Laws(London, 1831), 3 ff.

[249]The Foljambe case has given rise to much controversy. It is commonly regarded as marking the formal abandonment of the more liberallawof the Reformation period and a return to canonical principles. This view is mainly traceable to the statements ofSalkeld,Reports of Cases in the King's Bench(Philadelphia, 1822, from 6th London ed.), III, 137, who commits several errors, and is otherwise misleading. He is followed byJeaffreson,Brides and Bridals, II, 324;Geary,Marriage and Family Relations, 12;Macqueen,Practical Treatise, 470, 471;Harrison,Probate and Divorce, 115; and especiallyBishop,Marriage and Divorce(5th ed.), I, §§ 661, 705. On the other hand,Woolsey,Divorce, 172, note, 310-13, following the researches ofCraik,Romance of the Peerage, I, Appendix, regards the decision as merely confirming existing law. He criticises Bishop for being misled by Salkeld, whereas the facts appear to be more correctly given inNoy'sReports, 100; and particularly inMoore'sCases(2d ed. folio, London, 1688), 683, which may be translated from the law-French as follows: "Feb. 13,anno44 Eliz. In the Star Chamber it was declared by all the court, that whereas Foljambe was divorced from his first wife for incontinence of the woman [in fact, for his own adultery], and afterwards had married Sarah Poge [Page], daughter of Rye, in his former wife's life-time, this was a void marriage, the divorce beinga mensa et thoro, and nota vinculo matrimonii. And John Whitgift, then Archbishop of Canterbury, said that he had called to himself at Lambeth the most sage divines and civilians, and that they had all agreed therein." It is concluded, therefore, that this decision of the "sage divines and civilians" must have been incidental to a case under trial in the Star Chamber, and that the law was merely declared and not changed. See, however, the sixth edition ofBishop'swork, I, § 1498 n. 3, where the author insists on the essential correctness of his original view.Cf. alsoLaw Review(Eng.), I, 361, 362;Report of the Commissioners(Divorce), 1852-53, 4-6; andMorgan,Marriage, Adultery, and Divorce, II, 233.

[250]Law Review(Eng.), I, 362. One of these canons "provided that no persons separateda toro et mensashould, during their joint lives, contract matrimony with other persons, and that the parties requiring the sentence of divorce should give sufficient caution and security into the court that they would not transgress this restraint. Another canon required the judge who should grant divorce, without observing these rules, to be suspended for one year by the archbishop or bishop, and declared his sentence utterly void."—Woolsey,Divorce, 171, 172.Cf.Luckock,Hist. of Marriage, 177 n. 2;Morgan,Marriage, Adultery, and Divorce, II, 233 ff.

[251]By the act of 1 James I., c. xi, "bigamy" is used in the modern sense. In mediæval law a "bigamist" is one who marries againafterhis first wife's death; the word "polygamist" being employed for the person who takes another womanbeforethe death of the first spouse. By 4 Ed. I., 1276 (Stat. de bigamis,Stat. at Large[Pickering], I, 116), benefit of clergy is denied him who is a bigamist,i. e., has contracted a second marriage after death of the first wife:Jeaffreson,Brides and Bridals, II, 327. CompareGlasson,Hist. du droit, III, 184, 185."As for the crime of polygamy [the modern bigamy], it hath not been made penal by any statute, till the time of James the First. A canon of Pope Gregory the Tenth had taken away all clerical privileges from a bigamist, as the marrying a second wife was considered by the ecclesiastical law, to be proof of a most incontinent disposition; this regulation having been adopted in England, the clergy had a doubt, whether a person, who had been guilty of this offence before the canon law took place, might claim the indulgence of the common law; this statute [4 Ed. I.], therefore, retrospectively declares, he shall not be entitled to such privilege."—Barrington,Observations upon the Statutes(4th ed., London, 1775), 106; alsoJeaffreson,op. cit., II, 327, note. But it may be noted that by 1 Ed. VI., c. 12, sec. 16:Stat. at Large(Pickering), V, 265, 266, benefit of clergy is restored in terms which may leave it in doubt whether bigamy in the modern sense is intended. This privilege is granted to offenders, "although they or any of them have been divers and sundry times married to any single woman or single women, or to any widow or widows, or to two wives or more." On the ancient meaning of "bigamy" see alsoGlasson,op. cit., III, 184.

"As for the crime of polygamy [the modern bigamy], it hath not been made penal by any statute, till the time of James the First. A canon of Pope Gregory the Tenth had taken away all clerical privileges from a bigamist, as the marrying a second wife was considered by the ecclesiastical law, to be proof of a most incontinent disposition; this regulation having been adopted in England, the clergy had a doubt, whether a person, who had been guilty of this offence before the canon law took place, might claim the indulgence of the common law; this statute [4 Ed. I.], therefore, retrospectively declares, he shall not be entitled to such privilege."—Barrington,Observations upon the Statutes(4th ed., London, 1775), 106; alsoJeaffreson,op. cit., II, 327, note. But it may be noted that by 1 Ed. VI., c. 12, sec. 16:Stat. at Large(Pickering), V, 265, 266, benefit of clergy is restored in terms which may leave it in doubt whether bigamy in the modern sense is intended. This privilege is granted to offenders, "although they or any of them have been divers and sundry times married to any single woman or single women, or to any widow or widows, or to two wives or more." On the ancient meaning of "bigamy" see alsoGlasson,op. cit., III, 184.

[252]1 James I., c. xi:Stat. at Large(Pickering), VII, 88, 89.However, inferences as to the law in the preceding period must be made with caution. The case of Stephensv.Totty, decided at the Michaelmas term, 44 and 45 Eliz., shows that a husband and a wife divorceda mensa et thorowere still married:Croke'sReports(Elizabeth), 908.Cf.on this act especiallyHale,Hist. of the Pleas of the Crown(London, 1800), I, 691-93; alsoWoolsey,Divorce, 171;Law Review(Eng.), I, 362. Furthermore,Raynolds, a strong advocate of absolute divorce, in hisDefence of the Judgment of the Reformed Churches(1609), appears to make no claim that his doctrine is sustained either by law or custom. So also in the quaint treatise,The Lawes Resolutions of Women's Rights(London, 1632), 64 ff., full divorce is not recognized; although, referring to the fact that legally "no crime dissolueth marriage," the compiler (67) seemingly approves Conrad Lagus who says, "seeing that in Contracts of Wedlock we regard as well what is decent and conuenient, as what is lawfull, I cannot tell why we be not bound in dissoluing of it to follow the like equitie; and for example, if a Wife cannot dwell with her husband without manifest danger of death ... why may not she be separated iudicis ordinarij cognitione precedente?"On the other hand,Spence,Equitable Jurisprudence, I, 702, believes that the bond not to marry required by the canons of 1603 was the only hindrance to remarriage after divorce; and from this time onward he thinks it "not unlikely that the court of chancery decreed divorcesa vinculo; and that the American courts of equity brought this doctrine (or right) with them." This view is rejected byScribner,Treatise on the Law of Dower, II, 545-47, although he agrees as to the effect of the bond.

[252]1 James I., c. xi:Stat. at Large(Pickering), VII, 88, 89.

However, inferences as to the law in the preceding period must be made with caution. The case of Stephensv.Totty, decided at the Michaelmas term, 44 and 45 Eliz., shows that a husband and a wife divorceda mensa et thorowere still married:Croke'sReports(Elizabeth), 908.Cf.on this act especiallyHale,Hist. of the Pleas of the Crown(London, 1800), I, 691-93; alsoWoolsey,Divorce, 171;Law Review(Eng.), I, 362. Furthermore,Raynolds, a strong advocate of absolute divorce, in hisDefence of the Judgment of the Reformed Churches(1609), appears to make no claim that his doctrine is sustained either by law or custom. So also in the quaint treatise,The Lawes Resolutions of Women's Rights(London, 1632), 64 ff., full divorce is not recognized; although, referring to the fact that legally "no crime dissolueth marriage," the compiler (67) seemingly approves Conrad Lagus who says, "seeing that in Contracts of Wedlock we regard as well what is decent and conuenient, as what is lawfull, I cannot tell why we be not bound in dissoluing of it to follow the like equitie; and for example, if a Wife cannot dwell with her husband without manifest danger of death ... why may not she be separated iudicis ordinarij cognitione precedente?"

On the other hand,Spence,Equitable Jurisprudence, I, 702, believes that the bond not to marry required by the canons of 1603 was the only hindrance to remarriage after divorce; and from this time onward he thinks it "not unlikely that the court of chancery decreed divorcesa vinculo; and that the American courts of equity brought this doctrine (or right) with them." This view is rejected byScribner,Treatise on the Law of Dower, II, 545-47, although he agrees as to the effect of the bond.

[253]Porter's case, Easter term, 12 C. I.:Croke'sReports(Charles I.), 461-63.

[254]See the strong argument of Holburn and Grimston for the defendant who justly claim that a "divorcecausa saevitiaeis groundedex jure naturae, and is in the same manner and nature as a divorcecausae adulterii:Croke'sReports(Charles I.), 463.Hale,Hist. of Pleas of the Crown, I, 693, remarks "certainly the divorce intended" by James's act "is nota vinculo matrimonii;" and then further observes, in Porter's case "it was doubted, whether a divorcecausâ saevitiaewere such a divorce as was within this exception, because it seemed rather to be a provisional separation for the wife's safety and maintenance, than a divorce; but it was never resolved."Cf.alsoCo. Lit., 235;March,Reports of New Cases, 101;Coke,Institutes, III, 89;Kelyng,Report of Divers Cases(Dublin, 1789), 27;Geary,Marriage and Family Relations, 12.

[255]Jeaffreson,Brides and Bridals, II, 315, perhaps with too much emphasis, thus describes the effects of 32 H. VIII., c. 38: "It rendered wedlock easier of entrance, but closed all the many gates which had hitherto afforded spouses the means of escape from conjugal wretchedness.... The Elizabethan jest, that compared matrimony to a public rout, was no less applicable to wedlock in Catholic than to marriage in Protestant England; but whereas our ancestors before the Reformation could always get out of the press by a few permissible falsehoods and the payment of money, the marriage law of Protestant times declared that, having once forced their way into the crowd, they should remain in it till death came to their relief."

[256]His four principal works dealing with divorce are the "Doctrine and Discipline of Divorce" (Prose Works, III, 169-273); supplemented by "The Judgment of Martin Bucer" (ibid., 274-314); "Tetrachordon" (ibid., 315-433); and the "Colasterion" (ibid., 434-61). See alsoProse Works, IV, 243-49; I, 259.

[257]Milton, "Doctrine and Discipline of Divorce,"Prose Works, III, 241, 242.

[258]Milton, "Colasterion,"Prose Works, III, 423-33, where the views of many reformers are quoted; and "Doctrine and Discipline of Divorce,"ibid., 251-58, where Jesus's words are examined.

[259]Milton, "Colasterion,"Prose Works, III, 425.

[260]Milton, "Doctrine and Discipline of Divorce,"Prose Works, III, 185.

[261]The doctrine of indissolubility compels uncongenial minds to "fadge together, and combine as they may to their unspeakable wearisomeness, and despair of all sociable delight in the ordinance which God hath established to that very end.... All which we can refer justly to no other author than the canon law and her adherents, not consulting with charity, the interpreter and guide of our faith, but resting in the mere element of the text; doubtless by the policy of the devil to make that gracious ordinance become unsupportable, that what with men not daring to venture upon wedlock, and what with men wearied out of it, all inordinate licence might abound."—"Doctrine and Discipline of Divorce,"Prose Works, III, 181.

[262]Ibid., 210, 211, 195. For similar expressions seeibid., 181, 182, 185, 267.

[263]However, chap. xxxiv ofBucer'swork, entitled "That it is lawful for a wife to leave an adulterer, and to marry another husband," Milton disposes of with the remark that "this is generally granted, and therefore excuses me the writing out": "The Judgment of Martin Bucer,"Prose Works, III, 300. But this must be considered in connection with his positive claim of entire jurisdiction for the man in divorce causes, below referred to. Occasionally he drops a word from which possibly it may be inferred that he believes in a reciprocal right of the sexes; but it is amazing how adroitly he avoids a direct statement to that effect.Cf., for example, "Doctrine and Discipline of Divorce,"Prose Works, III, 182, where he seems to approve the liberal laws of the Christian emperors;ibid., 247-49, where he refers to Beza's view that divorce is for the benefit of the woman; "Tetrachordon,"Prose Works, III, 359, 372, where he touches lightly upon the mutual rights of husband and wife.

[264]Milton, "Doctrine and Discipline of Divorce,"Prose Works, III, 181. "And what his chief end was of creating woman to be joined with man, his own instituting words declare, and are infallible to inform us what is marriage, and what is no marriage; unless we can think them set there to no purpose: 'It is not good,' saith he, 'that man should be alone. I will make him a help meet for him.'"—Ibid., 187. Beza holds, says Milton, that divorce (by the Jewish law) is created "only for the help of wives." This leads him to exclaim: "Palpably uxorious! Who can be ignorant, that woman was created for man, and not man for woman, and that a husband may be injured as insufferably in marriage as a wife! What an injury is it after wedlock not to be loved! What to be slighted! What to be contended with in point of house rule who shall be the head; not for any parity of wisdom, for that were something reasonable, but out of a female pride! 'I suffer not,' saith St. Paul, 'the woman to usurp authority over the man.' If the apostle could not suffer it, into what mould is he mortified that can?"—Ibid., 247;cf.alsoibid., 209.

[265]Jeaffreson,Brides and Bridals, II, 333. He was not solely actuated by irritation against his wife, Mary Powell, whom he had put away; for he retained his views after taking her back and to his life's end:ibid., II, 333.

[266]ForMilton'stheory of divorce procedure, as summarized in the text, see "Doctrine and Discipline of Divorce,"Prose Works, III, 263-73.Cf.Jeaffreson,Brides and Bridals, II, 335-38.

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